Kagan’s Views on Religious Freedom Revealed

WASHINGTON — As a young White House lawyer, Elena Kagan waded deeply into politically volatile issues like abortion, immigration and religious freedom that may eventually come before her if she is confirmed to the Supreme Court, according to documents released Friday.

Ms. Kagan pushed back against President Bill Clinton when she thought his position on a controversial form of late-term abortion was unconstitutionally restrictive but backed other options that fellow administration lawyers considered unconstitutional. She argued against state interference with religious views and against local interference with federal immigration law.

She was also more involved than previously known in helping to coordinate the Clinton White House defense against the investigation into the Whitewater land deal and the sexual harassment lawsuit filed by Paula Jones, arguing at one point against emphasizing a broad assertion of presidential immunity. But many documents related to the Jones suit were redacted by Mr. Clinton’s presidential library on grounds of privacy or confidential advice to the president.

As an associate White House counsel from 1995 to 1996, Ms. Kagan provided advice to a president with his own political agenda, so it is hard to gauge how much her analyses reflected her own views or how they would apply if she had the authority of a Supreme Court justice. But since she has never served as a judge and has done only a limited amount of scholarly writing, the 43,000 pages released Friday offer a rare look at her legal thinking that may influence her coming confirmation hearings.

The papers were the second batch released by the library, for a total of nearly 90,000 pages from her files as associate counsel and later deputy domestic policy director. The library plans to release another 70,000 pages of e-mail messages before the Senate Judiciary Committee opens hearings June 28, but Republicans argue that they need more time to examine the material.

Ms. Kagan’s involvement in the debate over the procedure that opponents call partial-birth abortion may be grist for the hearings. As an alternative to Republican-sponsored legislation in 1996, Mr. Clinton’s staff outlined four options, and he focused on one that would ban the procedure even before the fetus was viable except to avert death or serious health consequences for the woman.

“You’re right — this is a problem,” Ms. Kagan wrote in a note to her boss, Jack Quinn, the White House counsel. “He seems as if he wants Option 1.”

Mr. Quinn wrote back: “E — HE DOES. JQ.”

Ms. Kagan and other administration lawyers concluded that would violate the Supreme Court’s Roe v. Wade ruling that established a woman’s right to an abortion before viability.

“The problem with this approach is twofold,” she wrote. “First, it is unconstitutional.” And “second, the groups will go crazy.”

She also wrote that any bill had to have a health exception to be constitutional, even though the Supreme Court a decade later would uphold a “partial-birth” abortion ban without one. On the other hand, she concluded that two options to restrict the procedure that the Justice Department considered unconstitutional would pass muster.

On immigration, Ms. Kagan was dismissive of a New York City lawsuit challenging a federal law allowing city employees to report illegal immigrants even though local law forbade it. The suit relied on the 10th Amendment, which reserves powers not delegated to the federal government to the states or the people and which is often cited by these days by the Tea Party movement.

Ms. Kagan called New York’s suit “nearly frivolous” and wrote that “the federal government has strong institutional interests at stake in defending against such 10th Amendment claims.” A federal appeals court affirmed dismissal of the suit in 1999.

When another appeals court struck down an Arizona constitutional amendment mandating that state officials use only English in documents and state business, Ms. Kagan urged the administration to stay out of the case, noting that some thought the ruling was “extremely expansive and very possibly wrong.”

“All in all,” she added, “it seems that the best course here is to do nothing. From a political standpoint, we don’t want to highlight this issue. From a legal standpoint, we don’t want to defend the Ninth Circuit’s decision.”

In another case, she recommended that the federal government intervene in a case to support religious freedom. The California Supreme Court ruled that a landlord violated a state law prohibiting housing discrimination by refusing to rent an apartment to an unwed couple because she considered sex outside marriage to be a sin.

Ms. Kagan scorned the California justices’ rationale that the landlord’s religious freedom was not burdened because she could get another job. “The plurality’s reasoning seem to me quite outrageous — almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state,” Ms. Kagan wrote.

She also helped Mr. Clinton navigate two of the most contentious scandals of his presidency in Whitewater and the Jones lawsuit. Mr. Clinton withheld some of those records from public view on Friday but agreed to let senators have private access to them.

But the documents that were released make clear that Ms. Kagan was part of a White House effort to defend the secrecy of presidential deliberations. In the Whitewater case, she worked to deflect a Senate subpoena for notes of meetings between the White House and private lawyers. She solicited supportive statements or op-ed articles from former officials and law professors, even ghostwriting or editing some of them.

In the Jones case, Ms. Kagan served as a link between the White House and private lawyers as they argued that a sitting president should not be forced to testify in a civil law suit about behavior before taking office.

In one memorandum, she praised a brief arguing the case on narrow legal grounds. “The brief (in my view correctly) downplays the question whether the president has constitutionally mandated immunity from civil suits involving pre-presidential conduct,” Ms. Kagan wrote, arguing instead for discretion by a judge to postpone testimony until after the presidency.

Ms. Kagan’s ambition emerges in the documents. She angled to become head of the Justice Department’s Office of Legal Counsel, collecting recommendation letters and telling a senior White House official that she had the support of then-Senator Joseph R. Biden Jr., a previous boss.

She did not get that job, but was later nominated to a federal appeals court. Weighing her qualifications, Charles F. C. Ruff, Mr. Quinn’s successor, wrote that at 38 she “would be considered very young and inexperienced for this highly prestigious judgeship.” Mr. Ruff added that her review of a book on confirmation hearings “cuts both ways politically” because “Senate Republicans will not appreciate her conclusion” that their party is responsible for politicizing the process.

The Senate never acted on her nomination.

Courtesy of http://www.nytimes.com/2010/06/12/us/politics/12kagan.html?pagewanted=2&src=twt&twt=nytimes