Politico has reviewed several policy memos that Elena Kagan wrote in her capacity as an adviser to President Clinton. The memos are held at Clinton Presidential Library in Arkansas.
It is difficult to use the memos to predict how Kagan would decide cases as a judge, because she was advising Clinton to do things largely as a part of political strategy. Nonetheless, because Kagan has not expressed a wide range of ideas in her legal scholarship, the memos, along with other materials and the confirmation hearings, will inevitably serve as a rough method for trying to understand her stance on social and political questions.
Politico's analysis will certainly raise concerns among many progressives. Here are some highlights.
* Kagan advised Clinton to reject a proposal to expand Medicare coverage of abortions. At the time, the health plan covered abortion when the life of the mother was at risk, but pro-choice advocates wanted to loosen the restriction. The expanded coverage would have included cases of rape or incest. Kagan advised Clinton to reject this option.
* Kagan also advised Clinton to support an amendment to a "partial-birth" bill that would allow the procedure only when not doing so would "risk grievous injury" to the mother's health. Congress eventually passed a bill without a health exception, which Clinton vetoed. The grievous injury language was probably unconstitutional under then-existing doctrine. The Supreme Court later invalidated a Nebraska partial-birth law that lacked a health exception, and its abortion cases had forcefully mandated that abortion bans include a general health exception (not limited to grievous injury). After O'Connor retired, however, the Court upheld a federal ban passed during the Bush administration, even though it lacks a health exception.
* Kagan also advised Clinton to retreat from efforts to reduce the sentencing disparity between crack and powder cocaine. The Federal Sentencing Commission recommended invalidating it, and critics had long pointed out that the disparity was not scientifically justifiable and that it led to a pronounced racially discriminatory effect. Kagan, however, advised Clinton to maintain the status quo: “Our more nuanced message will not sell as well as the ‘tough on crime’ opposition message in an age of sound bites. . . .”
* Also related to crime, "[o]ne memo . . . includes easy-to-sell policy ideas" including "broadening police powers to 'stop and frisk suspicious characters' and putting a 'cop in every school.'"