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Elena Kagan Memos: Clinton Library Papers Reveal Savvy Political Insider

5 years ago
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Supreme Court nominee Elena Kagan is making courtesy calls on senators to smooth the way for her confirmation hearings, with a White House team in tow to manage the process. With a background in politics, policymaking and dealing with the press, however, Kagan is a seasoned strategist herself, with stints in campaigns and at the Clinton White House.

One rap on the nominee to replace retiring Justice John Paul Stevens is that she has never been a judge. But she does know how government works at the highest levels: the sausage-making behind high-minded presidential initiatives and the inner workings of Congress. She also has been an active Democratic donor, contributing to federal and local contests in states where she has lived: New York, Massachusetts and Illinois.

As the nation has begun an intense look into the woman who will likely be confirmed sometime this summer, one place to focus is the paper trail available at the Clinton Presidential Library in Little Rock, which is starting to release documents from her tenure.

President Obama met Kagan, whom he nominated on Monday to the high court, while they both were at the University of Chicago Law School. They overlapped there a few years before she left to join the Clinton administration, first as an associate counsel to the president from 1995 to 1996 and then as deputy assistant to the president for domestic policy from 1997 to 1999.

White House Chief of Staff Rahm Emanuel also knows her from their days in the Clinton White House. Kagan's boss at the Domestic Policy Council was Bruce Reed, with whom Kagan became buddies at Princeton; she was his editor at The Princetonian. And Reed was and is a close Emanuel friend; they are co-authors of a domestic policy book.

The Clinton Library documents indicate that Kagan was given to scribbling notes on the sides of memos and complained of too much legal "gobbledy gook" in one advisory that landed on her desk. Kagan seemed to like to reduce tasks -- even mega-projects such as Clinton's race initiative -- into bite-size chunks. And she liked to plan.

On June 22, 1998, when Kagan was a deputy domestic policy adviser, she and Reed crafted a memo proposing a variety of suggested "summer announcements and events" for the president. Clinton could announce "the national roll out" of a $195 million anti-drug media campaign, complete with a "road block" purchase of ads on network television that night; he could launch a summer reading initiative; he could crack down on health insurers in federal plans that discriminate against sicker patients. Knowing how to sell a story, Kagan scribbled a note on the side of that memo saying if Clinton did that, they should "find three victims" from the "diabetic community."

And Clinton could even ask Congress to crack down on food safety because "summer is the time when people think most about these issues."

Kagan also seemed unafraid to be confrontational or shy away from intramural wrangling. When a memo from the Office of Public Liaison used materials developed from personnel in her office -- but did not give credit -- she scribbled in a margin to Reed: next time they want "help from our staff in preparing briefing materials, [they] should check in with one of us first."

On June 13, 1997, Clinton issued an executive order creating a commission to study race in America, and on Nov. 11 of that year, Reed and Kagan in a memo offered a series of policy ideas for a "race neutral opportunity agenda." There was still a need for "strong civil rights enforcement" and for "narrowly tailored affirmative action program," they wrote. The best hope for improving race relations was to "expand opportunity across racial lines," a concept that years later would be echoed by Obama himself on the presidential campaign trail.

Reed joined the Obama administration last month as the executive director of the new National Commission on Fiscal Responsibility and Reform. I asked him Thursday about how Kagan swam in the White House political stream.

"She wasn't a political hack; we had plenty of those. She was a serious thinker who could master any policy issue," Reed said.
As for her operating style, "she is a pragmatist. She has an extraordinary knack for listening to competing points of view and boiling them down to their essence, so often . . . when we had a particularly complicated inter-agency dispute on an issue, I would ask her to run the meeting because she was able to identify the central issues more quickly than anybody I had ever seen, and I think she had a good sense of the practical, which puts a person ahead of most of the class.

"Some academics have a hard time in Washington because they are mystified by the political process and it leaves a bad taste in their mouth," Reed told me. "She had no trouble making the adjustment to government because she viewed the political process as a really interesting and complicated case that was worth trying to figure out."

While in the White House, Kagan's press chores included occasional briefings, and on the politics side, Kagan helped out in debate prep during Clinton's 1996 re-election campaign. She said in a questionnaire filed with the Senate Judiciary Committee for her solicitor general confirmation that she played a "small role" and it was "mostly preparing mock questions and answers."

By the time Kagan landed in the Clinton White House, she already was a veteran of several political campaigns. Between July and November 1988, Kagan worked in the Dukakis presidential campaign, where her boss was John Podesta, who went on to become Clinton's chief of staff. Podesta was in the East Room on Monday when Obama, with Kagan and Vice President Biden at his sides, nominated her.

In 1980, Kagan helped Democratic Senate candidate Elizabeth Holtzman's failed New York race. Kagan wrote that she cried when Holtzman lost. In a New York Times blog Monday, Holtzman said Kagan's resume is as robust as a career jurist. "I believe that knowing how government works -- and doesn't work -- is as important a background for the Supreme Court as anything else," she wrote.

While in Chicago, Kagan was on the board of governors of the Chicago Council of Lawyers from 1993 to 1995, a group deeply involved in screening candidates running for Cook County judgeships. Judicial elections in Cook County are crassly political and the council's support was crucial to independent contenders who did not have backing from ward organizations, Mayor Daley or the remnants of the old machine. Kagan was involved, she told the Senate, in the council's evaluation process.

Political Donations

In the last decade, Kagan had donated about $15,000 to Democratic candidates and committees, sending checks to old friends.

Jose Cerda worked with Kagan on the White House Domestic Policy Council back in the 1990s. In January 2007, he was running for city clerk of Chicago, calling everyone he knew for campaign cash.

"I called her, she was at Harvard at the time, she took my call and she was eager to help a former colleague," Cerda told me. Her $500 check soon arrived.

Between 2000 and 2008, Kagan gave $12,300 to federal candidates. Among the recipients: Obama, when he first ran for the Senate in 2004, received $2,000 from Kagan; she donated the maximum, $4,600, to Obama's presidential campaign. She also sent along $250 to Emanuel's war chest. (He gave up his House seat when Obama picked him for chief of staff.)

She also contributed $1,500 to John Kerry's Senate campaign; $1,000 to 2000 Democratic presidential nominee Al Gore; $1,000 in 2000 to the Democratic National Committee and, in the same year, $750 to back Hillary Rodham Clinton's 2000 New York Senate bid.

Among her New York state donations was $1,000 in 2006 to help the Spitzer-Paterson campaign. In Massachusetts, she contributed $500 to Deval Patrick's race for governor, and in 2006 she gave $500 to the state Democratic committee.

As a justice with a lifetime appointment, Kagan will never have to write a political check again. But if confirmed, she takes the experience with her.

Said Cerda of Kagan's White House time: "I viewed her less as a political person than our resident in-house critical thinker. She kept us all honest and she had a rigor and a depth to thinking that went beyond what a lot in the White House had. Politically she was astute."
Filed Under: Elena Kagan

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