Pundits mine Kagan memos to reinforce own views

By Muriel Kane
Friday, June 11, 2010 22:32 EDT
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Depictions of Kagan range from politically ambitious to Clinton loyalist to ho-hum pragmatic moderate

The release of 42,000 pages of memos relating to Supreme Court nominee Elena Kagan’s years in the Clinton White House has provided a kind of Rorschach test in which reporters and commentators can find whatever images suit their own preconceptions.

Kagan served as a deputy White House counsel from 1995 to 1997 and then as a domestic policy adviser until 1999. During those years, the Washington Post proclaims, “she quickly found herself immersed in the scandals and snafus of Bill Clinton’s presidency: the Paula Jones case, Whitewater, and a controversy over mishandled FBI files. … Kagan was taking part in dramas and debates that often were as political in nature as legal — and … she was showing a relish for them.”

“The newly released documents show just how finely tuned Kagan’s political antennae were,” the Post continues, citing such incidents as Kagan’s drafting of an op-ed to be signed by legal experts, arguing that attorney-client privilege protected Clinton’s lawyers from having to divulge information to the Whitewater investigation. Even Kagan’s attempts to secure an administrative assistant when she first arrived in the White House are described as “internal politicking.”

In contrast with the Post’s description of Kagan as involved in a broad range of politically sensitive issues, the Wall Street Journal chose to focus more narrowly on the Paula Jones sexual harassment case against Clinton. The Journal story actually spends several paragraphs detailing Clinton’s unsuccessful effort to have the case dismissed before bothering to note that “an Obama White House aide said Ms. Kagan wasn’t crafting litigation strategy in the Paula Jones case and focused on more routine work such as reviewing documents.”

One Fox News blog makes a similar attempt to associate Kagan with Clinton-era scandals by describing her as “busy coordinating an aggressive media response to the Whitewater scandal that clouded much of the Clinton Administration.”

A very different take on the Kagan memos, however, appears in an Associated Press story, which emphasizes Kagan’s involvement in crafting language intended to limit a proposed ban on partial-birth abortion, along with other memos that provide “glimpses of Kagan’s positions on controversial issues, such as her reservations about a federal law banning assisted suicide, and instances where she took a broad view of religious freedom.”

“In one case likely to be cited by her allies as evidence that she’s no liberal,” AP notes, “Kagan criticized a California court for rejecting a landlady’s claim that a state anti-discrimination law violated her religious freedom. In a 1996 memo, Kagan suggested that her appeal should be taken by the Supreme Court and that the justices should side with the landlady, who refused to rent to unmarried couples based on her belief that sex outside of marriage was wrong.”

And perhaps the ultimate image of Kagan as non-partisan and non-controversial appears in a column at Forbes by legal expert Victoria Pynchon, titled “Kagan Documents Show Pragmatism, Inclination to Seek Middle Ground.”

“The documents reveal Kagan’s pragmatic mind-set as well as her willingness to negotiate across partisan and ideological lines,” Pynchon writes. “Kagan’s opinions on the ‘hot button’ issues that have provided the drama in every confirmation hearing since Robert Bork’s do not stray far from those held by Democrats, who tend to possess a far broader range of views than is generally depicted.”

Muriel Kane
Muriel Kane
Muriel Kane is an associate editor at Raw Story. She joined Raw Story as a researcher in 2005, with a particular focus on the Jack Abramoff affair and other Bush administration scandals. She worked extensively with former investigative news managing editor Larisa Alexandrovna, with whom she has co-written numerous articles in addition to her own work. Prior to her association with Raw Story, she spent many years as an independent researcher and writer with a particular focus on history, literature, and contemporary social and political attitudes. Follow her on Twitter at @Muriel_Kane
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