Strengthening Constitutional Self-Government

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Maybe Sandy Berger Can Help...

Ed Whelan reports that the director of the Clinton Presidential Library says it will be "very difficult" to review and release White House records relevant to Kagan's nomination in time for Leahy's hearing start date of June 28th.  There are 160,000 pages of letters, memos, emails, and other documents.

Terry Garner, the library's director, stated:

"There are just too many things here...These are legal documents and they are presidential records, and they have to be read by an archivist and vetted for any legal restrictions. And they have to be read line by line."

Oh, but this shouldn't be too big of a stumbling block for some senators.  Let us not forget that the current majority leader, Harry Reid, boasted that he had not read a "single one" of Sotomayor's judicial opinions before her hearing, and that he hoped to get through the hearing without having to read any.

But for those Senators who take their role of advice and consent seriously, who know precious little about Elena Kagan given her complete lack of judicial experience, her lack of litigation experience before her brief stint as Solicitor General, and her paltry publications record, this should be a deal breaker for any kind of a rushed hearing and vote.  Senators simply will not have the information about how she has approached legal questions and what this may say about her judicial philosophy without gaining access to these documents with adequate time to review them.  On that count, the statement of the Clinton Library is instructive: even five weeks is not enough time to go through all the documents in an adequate fashion.  Senators should demand the documents, and adequate time to actually review them, before they go forward with a hearing or votes.  To do otherwise would likely assure that the hearing is just the kind of farce that Kagan herself has previously derided.

Categories > Courts

Discussions - 4 Comments

Good post. I think her nomination is inevitable and don't see any reason for the Republicans to put up much of a political fight other than to highlight the fallacies in Progressive jurisprudence. That being said, I'm 100% in favor of attempting to fillibuster her nomination until those documents are made availible to the US Senate. I'm sure Roberts' had an even greater paper trail (can anyone verify that?), but all of it was made availible by the Bush Administration. "Most transparent White House in history" my ---.

I don't know, I want senators and congressmen to read the bills they vote on, but with the length of the some bills I know they don't always get to read them seriously.

Approving a Supreme Court nominee shouldn't be that hard. I don't care who you are, no senator wants to read 160,000 pages of info. That looks like an amount that is just perposterous. In that context Harry Reid's comment doesn't really sound like it is in bad faith. In fact it is simply judicial efficiency. Harry Reid was going to vote for Sotomayor because she was a democrat, unless republicans, democrats or staffers in digging around found something that really was allarming and more or less sunk her nomination, then Harry Reid would not read her unless Obama persisted and he had to read something to sound informed or provide a counter argument for why he was going against the president.

Look the role of a congressman or senator is to be informed enough, to read 160,000 pages on Kagan makes you more or less a historian of the Clinton presidency. That is not in the job title.

Also I bet that these documents while saying something about Kagan will mostly say something about the thinking of democrats during the Clinton era. That is Kagan was working for Clinton, so she wrote in favor of the administration.

One thing that could be interesting would be Kagan's briefs or legal thinking on behalf of don't ask don't tell, which is Clinton policy. But this would simply demonstrate that she writes for an employer.

Andrew: 160,000 pages is not transparent, it is a career change. President Obama didn't read 160,000 pages of work by Kagan, unless early on as a con law prof he started thinking about who should be on the supreme court, but even then he didn't read that much. The truth is Obama probably nominated her on partial aquaintance and recommendations. By the time the president nominates someone the work has been done, and you simply ask for some briefs by the white house and various staffers highlighting accomplishments, and if you play it right you read no more than 100 pages. Really for senators to read it original material themselves they have to have a lack of faith in staffers, the president, the party or others who give them the brief account.

At some point you know enough to pick a side, and the point doesn't extend out 160,000 pages. In fact Andrew already knows that she is proggressive and that such a jurisprudence has fallacies. So Andrew is ready to vote no. I don't mean to say that this means that Andrew is dumb, nor is he acting in bad faith. Rather I mean to defend Harry Reid who claimed never to have read Sotomayor opinions, because he already knew enough. In terms of Constitutional jurisprudence this has to also cut in favor of Clarence Thomas, who never asks questions and seems to always have his mind made up before the case is argued, as opposed to Scalia and Sotomayor who while perhaps being already certain of how they will vote nevertheless always ask a lot of questions.

Placing someone on the SC should be VERY difficult. It's the only office in the government that holds a lifetime tenure, and (thanks to the progressives) these are the people who increasingly run our lives.

So, these senators can take a break from their endless re-election campaigns and read the material, by God.

John, I'm not prepared to vote no. In fact, if I could get some clarification on some of her opinions, I would gladly vote yes and chalk it up as a victory for having dodged a bullet. Nor am I suggesting that anyone read 160,000 pages of legal documents - I said they should be made availible to the Senate. The Supreme Court is a lifetime appointment - the president should not run interference for his nominees and those senators who have some concerns can assauge them (or confirm them) by digging into the documents and voting accordingly. Otherwise, as you imply, it's all just a political farce.

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