Video: Kagan's critics pore over thin paper trail

  1. Transcript of: Kagan's critics pore over thin paper trail

    BRIAN WILLIAMS, anchor: She was the first woman to serve as dean of Harvard law school and the first woman solicitor general , the government 's lawyer at the Supreme Court . If President Obama has his way, she'll be just the fourth woman in US history to take a seat on the Supreme Court . She is Elena Kagan . She's from New York , and while she's never been a judge, she has that in common with a host of justices on the court throughout history. Today the president praised her legal mind. Now we wait and see how tough a fight this will be. We begin our coverage here tonight with our justice correspondent Pete Williams at the Supreme Court . Pete , good evening.

    PETE WILLIAMS reporting: Brian, the president today called her a woman of many firsts, but one thing she's never been is a judge. That lack of experience is already becoming an issue, even though roughly one-third of all Supreme Court justices were never judges when they got here, either. Mr. Obama called Elena Kagan , the second Supreme Court nominee of his presidency, someone who can bring people together.

    President BARACK OBAMA: Elena is respected and admired not just for her intellect and record of achievement, but also for her temperament, her openness to a broad array of viewpoints.

    P. WILLIAMS: She's the child of a New York housing rights lawyer father and a public school teacher mother.

    Ms. ELENA KAGAN: My parents' lives and their memory remind me every day of the impact public service can have. And I pray every day that I live up to the example they set.

    P. WILLIAMS: Judging from her high school yearbook, she had early aspirations to wield a gavel. Classmates say she was a standout in a school of overachievers.

    Ms. JUSTENE ADAMEC (Former Classmate): She would speak up and talk to the teachers as if she was much older. She knew far more history and far more of the news events that the rest of us had not started paying attention to.

    P. WILLIAMS: After Princeton and Harvard law school , she clerked for Supreme Court Justice Thurgood Marshall , who called her "Shortie." For most of the 1990s she taught law at the University of Chicago , where she met a young Barack Obama , a part-time faculty member. She served President Clinton as a lawyer and policy adviser and later became the first woman dean of Harvard law . She diversified the faculty, hiring prominent conservatives. But her tenure included controversy; she enforced a long-standing anti-discrimination policy there, blocking military recruiters from the law school because of the Pentagon 's ban on gays in the military . Last year President Obama appointed her solicitor general , responsible for arguing the government 's position before the Supreme Court .

    Ms. KAGAN: Mr. Chief Justice, and may it please the court , I have three very quick points to make about the government 's position.

    P. WILLIAMS: Some Republicans say her lack of experience as a judge clouds her nomination .

    Senator MITCH McCONNELL (Minority Leader): The lifetime position on the Supreme Court does not lend itself to on-the-job training.

    P. WILLIAMS: But some Senate Democrats consider her background a plus.

    Senator PATRICK LEAHY (Democrat, Senate Judiciary Committee Chair): I worry when you're in a judicial monastery that you don't have the kind of real world experience you might have otherwise. So I -- and she brings a breadth of experience .

    P. WILLIAMS: And a Supreme Court expert says her lack of experience as a judge leaves a scant paper trail .

    Mr. TOM GOLDSTEIN (Supreme Court Expert): No track record when it comes to abortion, affirmative action , religion, a lot of the hot button social issues that could give rise to a huge nomination fight.

    P. WILLIAMS: A few other points about her: accomplished poker player, opera lover, and, given that nickname that Justice Marshall gave to her, she's five foot 3", Brian.

By
updated 5/10/2010 8:52:02 PM ET 2010-05-11T00:52:02

As a White House adviser in 1997, Supreme Court nominee Elena Kagan urged then-President Bill Clinton to support a ban on late-term abortions, a political compromise that put the administration at odds with abortion rights groups.

Documents reviewed Monday by The Associated Press show Kagan encouraging Clinton to support a bill that would have banned all abortions of viable fetuses except when the physical health of the mother was at risk. The documents from Clinton's presidential library are among the first to surface in which Kagan weighs in the thorny issue of abortion.

The abortion proposal was a compromise by Democratic Sen. Tom Daschle. Clinton supported it, but the proposal failed and Clinton vetoed a stricter Republican ban.

In a May 13, 1997, memo from the White House domestic policy office, Kagan and her boss, Bruce Reed, told Clinton that abortion rights groups opposed Daschle's compromise. But they urged the president to support it, saying he otherwise risked seeing a Republican-led Congress override his veto on the stricter bill.

Clinton generally supported banning late-term abortions but insisted there be an exception when the mother's health was at risk.

No long history of opinions and briefs
Because Kagan spent little time in court and never sat as a judge, she does not have the typical long history of court opinions and legal briefs. That has made it difficult to assess her legal acumen or ideology. President Barack Obama announced Kagan's nomination to the high court on Monday.

White House spokesman Ben LaBolt said "judges confront issues differently than staff attorneys for an administration." He noted Chief Justice John Roberts made a similar point during his nomination when he was questioned about positions he took as an attorney in the Reagan administration's Justice Department.

Indeed, the memo is more of a political calculation than a legal brief, but Kagan and Reed urged Clinton to support the compromise despite noting that the Justice Department believed the proposal was unconstitutional.

"We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto," they wrote.

The memo noted that another White House adviser, Rahm Emmanuel, also supported the idea. Emmanuel is now Obama's chief of staff.

Proposals such as late-term abortion bans are seen as key battlegrounds in the legal fight over abortion. Though the debate often focuses on whether the Supreme Court will someday overturn Roe v Wade, the high court more frequently takes cases that carve out the exceptions that make it easier or harder for women to obtain abortions.

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The memos were contained in Reed's files. They do not include Kagan's papers from her time as domestic policy adviser and associate White House counsel. Those records, a several-thousand page collection that could provide the most revealing look at Kagan's legal work, are expected to be released this summer.

The library released more than 5,000 papers from Justice Sonia Sotomayor before she was confirmed last year.

Kagan also recommended that Clinton support legislation banning human cloning in May 1997. At the time, the scientific and religious communities were abuzz about news that scientists had cloned a sheep, Dolly. The news raised questions about the legal and ethical boundaries of such research.

Kagan and White House science adviser Jack Gibbons urged the president to support a congressional ban on human cloning. Clinton followed that advice but the bill died in Congress.

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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