Supreme Court nominee Kagan, as Clinton aide, defended religion rights in discrimination case

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As Clinton counsel, Kagan defended religion rights

WASHINGTON — As a counsel to former President Bill Clinton, Supreme Court nominee Elena Kagan blasted 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 the case should be taken by the Supreme Court and that the justices should side with the landlady, who refused to rent to unmarried couples. The memo is part of a roughly 40,000-page trove of documents released Friday that shed more light on what kind of justice Kagan might be.

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

Kagan’s allies are virtually certain to cite the papers to counter Republican suggestions that Kagan takes a cramped views of religious liberty. The files were made public by the William J. Clinton Presidential Library in Little Rock, Ark.

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

Kagan said that reasoning was “almost as if a court were to hold that a state law doesn’t impose a substantial burden on religion because the complainant is free to move to another state.”

She questioned the decision by then-Solicitor General Walter Dellinger not to weigh in on the case, Smith v. Fair Employment Housing Commission, after the landlady appealed to the U.S. Supreme Court. Kagan wrote that “there is an argument to be made for urging the court to review and reverse” the California ruling against the landlady. The Supreme Court eventually declined to take up the case.

That same year, Kagan helped draft a proposed executive order that she said “recognizes constraints” on religious expression but “tries to show … that within these constraints, there is substantial room for discussion of religious matters.”

Senators are mining Kagan’s work as a Clinton aide for clues about her opinions and legal approach.

Friday’s release — the second installment in a 160,000-page cache of records — includes files from Kagan’s stint as a White House counsel in the mid-1990s, and also regarding her failed nomination to the federal bench.

The Senate Judiciary Committee, which is to begin Kagan’s confirmation hearings June 28, has requested all documents from her tenure in the Clinton White House. Still to come are about 80,000 pages of e-mail correspondence, including 11,000 pages written by Kagan.

Republicans say they are increasingly concerned they won’t get the documents soon enough to learn important information about Kagan and to draft questions before the hearings.

Sen. Jeff Sessions of Alabama, the top Judiciary Republican, had said he wanted all the records by week’s end.

“If it all gets delayed, we could have a real problem. I’m getting very worried about it,” Sessions said Thursday. He has said he will ask for a delay in the hearings if the documents aren’t delivered in time.

Conservative activists are pushing for Republicans to delay Kagan’s confirmation over the documents. Curt Levey of the Committee for Justice said Friday’s release “will likely exacerbate rather than assuage” GOP concerns about disclosure, and he called for the second week in a row for Republicans to threaten to stall committee action on Kagan’s nomination.

A first, 46,500-page batch of files from Kagan’s stint as a domestic policy adviser to Clinton, released last week, yielded some clues about her pragmatic style and views. She helped Clinton craft a middle-ground position on late-term abortions that angered groups on both sides of the highly charged issue, praised a legal brief designed to protect affirmative action and helped craft an aggressive strategy to enact gun control measures. She also was instrumental in intense but ultimately unsuccessful bipartisan negotiations on a major anti-smoking initiative.

Kagan, President Barack Obama’s choice to succeed retiring Justice John Paul Stevens, was deputy director of Clinton’s Domestic Policy Council from 1997 to 1999. She served as a White House counsel from 1995 to 1996.

Clinton named Kagan in 1999 to sit on the U.S. Court of Appeals for the District of Columbia Circuit, but the Republican-led Senate never acted on her nomination, effectively killing it.