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Wednesday, April 7, 2010 as of 11:14 AM ET


Lee Ross

Supreme Court


New Docs: Kagan on Assisted Suicide Law

June 4, 2010 - 3:42 PM | by: Lee Ross

As a mid-level White House staffer, Supreme Court nominee Elena Kagan argued it was a “terrible idea” to pursue federal legislation in response to a state assisted suicide law, in a hand-written aside on a memo buried in more than 40,000 documents released Friday from the Bill Clinton Presidential Library in Little Rock.

The 1998 document [page 30] reveals Kagan’s previously unknown view on how she believed the federal government should respond to an Oregon law allowing assisted suicides. Kagan writes in her own hand the following:

Karen Popp called this week to say that DOJ is ready to opine that Oregon doctors who assist suicides are not violating the Controlled Substances Act. (This is contrary to an initial DEA ruling.) We need to decide whether to accompany this ruling with a request for new legislation making assisted suicide a federal crime. I think this is a fairly terrible idea, but I know Begala likes it. Do we need to run some kind of policy process? Elena

Kagan didn’t explain why she thought a federal response was terrible and it isn’t immediately clear what action was ultimately taken by the White House, but no legislation ever made it to Clinton’s desk in response to the Oregon law.

***UPDATE*** A White House official sent this statement to Fox News about this specific Kagan document:

“This wasn’t a yes or no question on whether assisted suicide should be banned. Some policymakers argued at the time that a federal law was necessary, and others argued that it should be left to states to outlaw this practice (analysis with which the Justice Department and HHS agreed). Only Oregon had passed a law legalizing assisted suicide. The vast majority of crimes are criminalized by state, not federal statute. While Kagan’s initial advice was that a federal law did not make sense at that time or in that context, she advanced a policy process so that others could weigh in and President Clinton could decide.”

All of the documents released Friday cover Kagan’s tenure from 1997-1999 as Deputy Assistant to the President for Domestic Policy. None of Friday’s documents related to Kagan’s prior two year stint in the White House Counsel’s office. That material is expected to be released later this month.

The documents cover the gamut of domestic issues that reached Kagan’s desk from abortion and AIDS to welfare and women’s issue. The papers are organized into “boxes” and segregated by subject material.

In the abortion section, a memo from Kagan outlines her suggested talking points for President Clinton and other officials on some controversial comments made by the head of an abortion rights group. There is also a memo to Clinton from Kagan and her immediate boss Bruce Reed detailing suggestions on what partial birth abortion amendments to support on Capitol Hill. In the margin Clinton writes “I fully agree…let’s do it now.” He also gave the memo his left-handed check mark acknowledging his approval.

There is also a memo Rahm Emanuel forwarded to Kagan, Clinton and Vice President Al Gore about poll numbers on partial birth abortion. The document concluded that the Clinton Administration had a “surprising opportunity” to go after proponents of strict abortion regulations. If nothing else, the memo provides a clear reminder of how poll numbers played an integral role in influencing policy decisions in the 1990’s.

The vast majority of documents, however, are representative of nothing more than the bureaucratic minutia that provides little to no insight on Kagan’s judicial views.

Friday’s release represents about 1/4 of the estimated 160,000 Kagan-related documents housed in the Clinton Library. Her confirmation hearing before the Senate Judiciary Committee is scheduled to start June 28. Some Republicans have expressed concern about that date saying it may not allow for enough time to review Kagan’s work from the 1990’s.

“[D]evelopments may occur during the course of such a review that simply require additional time-such as issues relating to document production or the need for more information connected with substantive controversies. If that is the case, we would be obligated to demand additional time,” Sen. Jeff Sessions, R-Ala., said last month when the hearing date was announced.

Archivists in Little Rock and a representative for the former president are reviewing all documents before release. White House Counsel Bob Bauer explained this week in a letter to Sessions that the review is necessary under federal open records law. Bauer also reiterated standing policy not to release documents containing classified information or material that would compromise personal privacy.

Sessions and Judiciary Committee Chairman Patrick Leahy, D-Verm., each released statements about today’s document release.


“With this initial delivery of documents, the Judiciary Committee has received more information from the administration than was made available at this point in the confirmation process for either the Roberts or Alito nominations. I commend the staff at the Clinton Presidential Library and the National Archives for their prompt work in responding so thoroughly to the Committee’s request.

“The Obama administration and the Archives are continuing to work to make available an unprecedented volume of information relating to Elena Kagan’s work in the Clinton administration. I appreciate the Obama administration’s willingness not to assert executive privilege with respect to this information. The materials that we have received today show that the Obama administration and the Archives are working hard to ensure that Senators have the information relevant to Solicitor General Kagan’s nomination before her confirmation hearing begins on June 28.”


“The batch of documents received today represent less than a third of the 160,000 pages of material we have been told exist from Elena Kagan’s time as a senior policy aide to President Clinton. We are now a mere 24 days away from the hearing and the committee still has yet to receive over 100,000 pages of documents, called for in a bipartisan request, from Ms. Kagan’s lengthy time in the White House. Making matters worse, there are new concerns that even when the documents are produced, they will not be produced completely and transparently. A carefully worded letter this week from White House Counsel Bob Bauer confirmed that neither President Obama nor President Clinton has waived Executive Privilege with respect to these records. In the same letter, Mr. Bauer made no guarantee that all of the documents will arrive in time for meaningful review prior to the hearing.

“We have a constitutional obligation to conduct a full and thorough review of this nominee on behalf of the American people. With each day that passes, I become more concerned that we will not receive documents in time for a proper review, or that they will be incomplete.

“Ms. Kagan’s record is exceptionally thin. She has never been a judge and only practiced law for a brief period-spending much of her career as a liberal advocate. And now, with the discovery of memos from Ms. Kagan’s time as a Supreme Court clerk, we know she has a demonstrated history of bringing her liberal politics into the courthouse. The Clinton documents must be produced and reviewed so that we can further explore how she approaches the fundamental legal issues and controversies of our times-and whether she will uphold the Constitution as written, or whether she will apply President Obama’s empathy standard, and place her politics ahead of the law.”

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