Kagan memos as Clinton aide touch on abortion limits, religious rights, sentencing guidelines

Kagan memos on abortion limits, religious rights

WASHINGTON — Supreme Court nominee Elena Kagan, as a Clinton White House counsel, drafted legal language designed to narrow a proposed ban on a procedure that critics call “partial-birth” abortion.

In a 1996 memo, Kagan argued it would be unconstitutional to prohibit the procedure outright — without an exception for cases where it was needed to avert “serious adverse health consequences” for the mother — and she recommended wording for such an exemption.

Kagan wrote that one of the virtues of her proposal was that “it will not make the groups” — presumably abortion-rights groups — “go crazy … because it fully protects the right of the woman to any medically necessary procedures.”

The memo is part of a roughly 40,000-page trove of documents released by the William J. Clinton Presidential Library on Friday that shed more light on what kind of justice Kagan might be.

The documents offer 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. And they reveal her involvement in defending Clinton from scandals that dogged his presidency and the sexual harassment lawsuit that helped lead to his impeachment.

Most of them date from her stint as an associate White House counsel for Clinton from 1995 to 1996.

The Republican-led Congress approved a ban on the abortion procedure in late 1995, and Kagan’s memo was from early 1996, a few months before Clinton vetoed the measure. In his veto message to Congress, which the files indicate Kagan helped draft, Clinton said he was acting because there was no exception for a mother’s health.

Clinton’s library is working on all 160,000 pages of documents related to Kagan’s White House tenure requested by the Senate Judiciary Committee that’s set to begin hearings on her nomination June 28. With Friday’s release, all the paper documents have been produced. Still to come are some 80,000 pages of e-mails — 11,000 pages of which were written by Kagan.

Republicans complained that the documents are emerging too slowly.

“I remain deeply concerned that Ms. Kagan’s records will not be fully produced in time for the committee to conduct a proper review,” said Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee. Based on the information senators have so far, he said, “it is clear that Ms. Kagan has demonstrated both strong liberal views and a willingness to substitute those views for sound legal judgment.”

Sen. Patrick Leahy, D-Vt., the panel’s chairman, called the concerns about timing “misguided and misplaced.” He said that “there is more than enough time for senators and their staff to review” the records.

“The documents released today show Elena Kagan to be a brilliant lawyer, advising President Clinton on a variety of complex issues,” Leahy said.

In one case likely to be cited by her allies as evidence that she’s no liberal, 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.

Kagan criticized as “quite outrageous” a finding by the California Supreme Court that the anti-discrimination statute didn’t stifle the landlady’s religion because she could make a living another way.

The papers also reveal that Kagan helped draft an executive order detailing federal employees’ rights to express their religion in the workplace.

Still, the files contain plenty of evidence that Kagan shared Clinton’s more liberal views.

In a May 1998 memo from her time as a policy aide, Kagan and chief domestic policy adviser Bruce Reed warned Clinton about Republican efforts to weaken a ban on assault weapons. The memo said the administration “beat back” an effort by Sen. Larry Craig, R-Idaho, to water it down.

“We unfortunately have not seen the last of this fight: Craig is very likely to offer a similar amendment during the appropriations process,” Kagan and Reed wrote.

The documents fill out a portrait of Kagan as a politically aware pragmatist who often ran interference for her boss as he tried to maneuver a middle course between liberal allies and conservative foes.

She was deeply involved in the administration’s efforts to overhaul the laws governing how political money is raised and spent. The White House favored two measures to do so, but the Justice Department feared both presented “serious constitutional issues,” Kagan wrote in a July 17, 1996, memo. She took on the job of dissuading Justice from publicizing its doubts, because disclosure might embarrass Clinton.

In a July 1997 memo to Clinton on drug sentencing guidelines, Kagan and Reed counseled a middle-ground policy to sharply reduce — but not eliminate — the disparity between crack and powder cocaine sentences. They said Clinton could expect criticism both from Republicans, who would call the position soft on drug users, and the Congressional Black Caucus, which would accuse the administration of “failing to go far enough to remove a racial injustice.”

The library held back many of Kagan’s memos and notes about the Paula Jones sexual harassment case, saying that publicly releasing them would divulge confidential advice. However, that material was turned over to the Senate panel on a “committee confidential” basis.

The lawsuit, involving allegations from Clinton’s time as governor of Arkansas, was brought by Jones, a former state employee. Clinton’s testimony for the lawsuit, denying a sexual relationship with White House intern Monica Lewinsky, helped lead to his impeachment.

It’s clear from records made public that Kagan had a hand in defending the president.

In 1996, she forwarded colleagues a brief written by then-Solicitor General Walter Dellinger supporting Clinton’s bid to postpone the civil trial until after he had left office.

“It’s really pretty good,” Kagan says of Dellinger’s brief. She notes approvingly that the brief “downplays” the question of whether the president should have immunity for conduct before he took office and instead focuses on the argument that the case should be delayed because it would disrupt the performance of Clinton’s duties as chief executive.

Kagan also helped oversee the gathering of subpoenaed documents at a crucial point in the Whitewater investigation. In a January 1996 memo, Kagan and another White House lawyer announced to presidential aides that “we have received a subpoena” to provide all material on Hillary Rodham Clinton’s legal work for a failed Arkansas savings and loan owned by the Clintons’ business partners, Jim and Susan McDougal.

The memo instructs staff members in the Executive Office of the President: “If you believe you may have responsive documents but cannot locate them … please contact Elena Kagan immediately.”

Associated Press writers Jim Abrams, Jim Drinkard, Ben Evans, Sam Hananel, Jesse J. Holland, Henry Jackson, Lauie Kellman, Andrew Miga, Stephen Ohlemacher, Ann Sanner, Mark Sherman, Sharon Theimer and Pete Yost contributed to this report.