Legal Commentary

Kagan?s Clinton Administration Memos

By Jonathan H. Adler

The NYT reports on some of the memoranda from the Clinton White House written be Elena Kagan that were released this past week.

A new cache of documents from Elena Kagan?s days as an adviser to President Bill Clinton shows that she frequently scribbled notes in the margins of memorandums yet rarely expressed forceful views. But on at least one question that came before the Clinton White House ? whether to make assisted suicide a federal crime ? Ms. Kagan was adamant.

?I think this is a fairly terrible idea,? she wrote in January 1998.

Ms. Kagan?s missives in the margins offer little hint of how she might behave if confirmed to the Supreme Court. But the 46,700 pages released Friday by the National Archives do offer glimpses into her thinking, revealing a woman who, like the president she worked for, was trying to balance competing policy objectives and chart a centrist course on matters as varied as abortion, race relations, immigration, AIDS, gun rights and embryonic stem cell research.

She endorsed a legal strategy aimed at avoiding a sweeping Supreme Court ruling against affirmative action. She urged the Department of Health and Human Services to be more candid about the lack of scientific evidence for medical marijuana. She expressed skepticism about a drive to bar schools from tracking students by ability. She cautioned against imposing tough marketing restrictions on the tobacco industry ? a hint of her background as a First Amendment scholar.

?I?m not sure I buy the argument re speech restrictions,? Ms. Kagan wrote.

These are some of the highlights of the first batch of Clinton White House memos to be released.   Much more are on the way.  The NYT also reports that 263 pages of material will be withheld from the public due to ?statutory restrictions,? but that Senators will be allowed ?to review them on a confidential basis.?

Full post as published by The Volokh Conspiracy on June 05, 2010 (boomark / email).