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GOP wants Clinton-era papers on Kagan

Republicans hunting for clues about what kind of justice Supreme Court nominee Elena Kagan would be said Tuesday they want to see papers from her time serving in the Clinton administration.
Image: Solicitor General Elena Kagan
President Obama said he hoped the Senate would confirm Elena Kagan in time for her to join the court before the opening of the next term in October.Doug Mills / The New York Times
/ Source: The Associated Press

Republicans hunting for clues about what kind of justice Supreme Court nominee Elena Kagan would be said Tuesday they want to see papers from her time serving in the Clinton administration.

The focus on Clinton-era documents reflects the GOP's difficult task of turning up material that could power opposition to Kagan, the solicitor general who appears likely to be elevated to justice barring extraordinary developments during her confirmation process.

"It is a confirmation, it's not a coronation," said Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee that will hold hearings on Kagan's nomination.

"She's never been a judge. Never litigated cases except in the last few months as solicitor general. And so she lacks a good bit, frankly," Sessions said.

GOP leaders said that makes it even more important that they get their hands on documents she worked on while serving as an adviser for Bill Clinton from 1997 to 1999.

"We need to understand what it was that she was involved in, whether there were controversies surrounding that," said Sen. Jon Kyl of Arizona, the No. 2 Republican. "And if that means that there are documents we need to see, we should see them. We are determined to understand what her role was in the Clinton administration as it pertains to her qualifications to serve as justice."

Kagan, 50, is to meet Wednesday with leaders of both parties as well as Sessions and Judiciary Committee Chairman Patrick Leahy, D-Vt., as she begins the delicate and closely watched ritual of making "courtesy calls" to the senators whose votes she'll need to win confirmation.

Senate Majority Leader Harry Reid defended Kagan Tuesday against GOP criticism that she's not qualified for the job.

Kagan "has fresh ideas. She's been out in the real world recently. I think she's going to be just a terrific addition to the Supreme Court," Reid, D-Nev., said on the Senate floor.

And he pointed out that one storied chief justice, William Rehnquist, was a GOP nominee who also came to the court without having first been a judge.

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, and gives Republicans little ready ammunition to use against her.

"There isn't a lot out there to shoot at. They're going to try to find things, and the net is going to be a fine one," said Sen. Dianne Feinstein, D-Calif., a member of the Judiciary Committee. "But I don't think they're going to find very much."

As a White House adviser in 1997, Kagan urged Clinton to support a ban on late-term abortions, a political compromise that put the administration at odds with abortion-rights groups. Kagan's papers from her time as domestic policy adviser and associate White House counsel — a several-thousand page collection that could provide the most revealing look at Kagan's legal work — are expected to be released this summer.

GOP critics have already made clear they'll question Kagan about her limited legal resume, her decision as dean of the Harvard Law School to ban military recruiters from campus, and her ability to rule objectively on cases involving the Obama administration.

"What record does she have to demonstrate that she has been able to put aside her strongly held political views?" Sessions said. "We need to make sure that she would faithfully apply the Constitution and not be a rubber stamp" for the current White House.

Vice President Joe Biden, in television interviews Tuesday, predicted that Kagan would be elevated with "strong, bipartisan support."

If confirmed, Kagan would take the place of retiring Justice John Paul Stevens and, on the face of it, would not be expected to alter the ideological balance of a court that often splits 5-4 on the most contentious cases.

On Tuesday, Sen. Orrin Hatch of Utah, one of seven Republicans who voted to confirm Kagan for her current post, said her decision to bar military recruiters on campus because she disagreed with the military's "don't ask, don't tell" policy for gay soldiers was "a very serious problem."

Kagan was approved as solicitor general on a 61-31 vote. None of the GOP senators who backed her then have committed to do so again, and two of them, Hatch and Kyl, have said they will approach her appointment to a lifetime job differently than they did a political post.