June 11, 2010

Impasse Over Kagan Documents

CFJ Executive Director Curt Levey on today’s release of Kagan documents:

“Today’s installment of Clinton Library documents will likely exacerbate rather than assuage the concerns of Judiciary Committee members that they will not be able to conduct a thorough review of Elena Kagan’s record before her hearings begin June 28. Both the volume and content of today’s document dump falls short of what senators need and hoped for.

“National Archives spokeswoman Susan Cooper had already warned that today’s release would not include the nearly 80,000 pages of e-mails written by or to Kagan, precisely those documents most likely to shed light on Kagan’s views. Except for the occasional e-mail that Kagan printed out, today’s document dump and the one last Friday consist largely of documents authored by other people, interesting only for the few comments Kagan wrote on them.

“This Wednesday, Judiciary Committee ranking member Jeff Sessions emphasized the importance of delivering all the Clinton Library documents by today, in order to leave two weeks for thorough review before Kagan’s hearings – not to mention leaving time for the inevitable tug of war over whatever documents the Library refuses to release. Instead, the roughly 40,000 pages released today plus the 46,000 released last Friday amount to only half of the more than 160,000 pages requested by the Committee.

“Because Kagan lacks a judicial record and has produced little in the way of scholarly writing, she bears ‘the burden of proof’ in demonstrating that she is fit for the nation’s highest court, as Sen. Kyl noted this week. Allowing time for a thorough review of the Library documents is a necessary part of meeting that burden.

“So Judiciary Committee leaders are at an impasse. Sen. Sessions’ deadline of today will pass with half the Clinton documents still missing. That would seem to trigger Sessions’ repeated commitment to demand postponement of the June 28 hearings if Committee members don’t have adequate time to review the documents. But Judiciary Chairman Patrick Leahy has dismissed the possibility of a postponement and his legendary stubbornness makes it unlikely he will change his mind. Thus the impasse.

“One can imagine only two scenarios in which Leahy would agree to delay the hearings. One is where President Obama, perhaps concerned about criticism of his Administration’s lack of transparency, agrees that full disclosure of Kagan’s record is needed before hearings begin. That’s a long shot.

The other scenario, which I outlined last week, requires Republican senators to make it clear that they will use one of a number of procedures in the Judiciary Committee or on the Senate floor to ensure that Kagan is not confirmed without a thorough vetting of her record. That would negate the incentive for Leahy to rush the hearings.”