June 21, 2010

Kagan: Guns & Withheld Documents

Statement of CFJ Executive Director Curt Levey:

Given the completion of the Clinton Library’s release of Elena Kagan documents on Friday – with the notable exception of the withheld documents discussed below – it is time to assess what those documents tell us about Kagan. Combined with the memos Kagan wrote while clerking for Supreme Court Justice Thurgood Marshall, the documents reveal a woman whose legal analysis is colored by her liberal ideology and personal policy preferences. However, the documents also contain some exceptions to this rule, hinting that there are some legal issues on which Kagan will not always be predictable. Unfortunately for gun owners, the Second Amendment is not such an issue.

When it comes to firearms, Elena Kagan’s liberal bias stands out again and again throughout the documents. The Second Amendment consistently plays second fiddle to gun control in Kagan’s analysis across issues such as gun-show regulations, trigger lock mandates, the Brady Bill, municipal lawsuits against gun manufacturers, the Congressional ban on assault weapons, an executive order banning semiautomatic weapons, use of executive agencies to push gun safety, use of state and local police to conduct background checks, and even the fundamental question of whether individuals have any Second Amendment rights. It is no wonder that Bill Clinton, the most pro-gun control President in American history, put Kagan in charge of gun policy.

Due to the late release of the Kagan documents, completed – sort of – six weeks after her nomination and just one week before her hearings, gun owners are just beginning to focus on how bad she is on Second Amendment issues. But their focus will be sharpened any day now, when the Supreme Court reminds gun owners of the profound impact Kagan can have on their Second Amendment rights if she’s confirmed. By month’s end, the Court will decide McDonald v. Chicago, a landmark Second Amendment case in which the Justices will answer the question of whether gun rights are protected at the state and local level.

The answer will almost surely be yes – if only by a narrow 5-4 margin – thus completing the shift of the guns rights battle from the legislatures to the courts. That shift was begun by District of Columbia v. Heller, the Supreme Court’s 2008 decision recognizing the Second Amendment as an individual right on the federal level.

The shift to the courts means that Second Amendment rights hang on the selection of Supreme Court Justices. “As with other ideologically charged issues in the hands of the courts, the future of gun rights depends as much on the composition of the federal bench as on the strength of the legal arguments,” as I noted in an October 2009 op-ed. And gun owners know it. As a result,
“The political dynamics of nominating and confirming judges has been forever altered. … [T]he new, gun-owning gorilla in the [judicial confirmation process] matches the pro-life movement in numbers and surpasses it in ability to influence moderate Republican and Democratic senators.”
Withheld Documents

The bad news in Friday’s document dump is that representatives of President Clinton and the White House decided to withhold about 1000 pages of Kagan emails from even the Judiciary Committee – not just the press and public – because of “privacy” concerns. Disturbingly, that makes well over 1500 pages that are being withheld from the Committee on that basis.

It is hard to fathom how that many pages could be legitimately withheld from Committee members for “privacy” reasons. That leaves incompetence – Politico reports on “evidence in the documents that the privacy restrictions were being inconsistently applied” – or a bias against release or something more malevolent as the likely reasons for the large amount of information withheld.

None of these explanations are acceptable, especially since the Library will not specify whose privacy is being protected. Are documents being withheld because they would be embarrassing to President Clinton or a third party – an arguably legitimate reason – or because they would be embarrassing to Elena Kagan – a reason at odds with the goal of thoroughly scrutinizing her record before confirming her to a lifetime seat on the Supreme Court?

Given the overriding importance of thorough scrutiny, a fair compromise would be to allow Committee members to view the documents in camera – that is, in a room where they could see but not copy or leave with the documents. Unfortunately, there is not much reason to expect Senate Judiciary Chairman Patrick Leahy to demand or the White House and President Clinton to agree to a compromise.

Thus, barring a pleasant surprise, a thorough review of Kagan’s record will not be possible unless Republican senators resolve to use the filibuster or similar procedures in the Judiciary Committee to ensure that Kagan is not confirmed without a solution to the missing pages problem. The GOP’s procedural options are outlined in my June 1 statement. Additionally, in today’s Roll Call, Professors Mark Rozell and Mitchel Sollenberger echo my call for a filibuster to ensure full release of the Kagan documents.