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Monday round-up

The last of Elena Kagan’s documents from the Clinton presidential library were released on Friday; a batch of Pentagon documents relating to on-campus military recruiting during her time as dean of Harvard Law School came out on Saturday.  One week before the Kagan confirmation hearings begin, the Supreme Court press corps sketched the personality revealed in approximately 11,000 email messages (and noted the occasional expletive), but there were no revelations that would seem likely to alter the course of the nomination.  In the New York Times, Adam Liptak and Sheryl Gay Stolberg report that the email messages, though “mostly short and bland” nonetheless “offered glimpses of a savvy, sharp-elbowed and sometimes salty-tongued lawyer at ease with politics, policy and bureaucratic infighting.”  For Politico, Josh Gerstein writes that Kagan seemed “to relish a good policy fight, had little patience for those who were unprepared for meetings, and took a jaundiced view of feel-good actions that weren’t likely to produce results.”

Amy Goldstein of the Washington Post describes Kagan’s e-mails, which “include stern admonitions on an array of issues, including religious freedom, fingerprinting Americans on welfare, affirmative action and school testing. At times, she was openly sarcastic to — or critical of — her White House colleagues.”  In the Los Angeles Times, James Oliphant plays down the drama, writing that the emails portray Kagan as “more administrator than provocateur.”  Bill Mears summarizes for CNN: “About 11,000 e-mails from Kagan reveal an engaged, efficient — but often outspoken and cynical — lawyer and policy analyst.”  Laura Litvan and Greg Stohr of Bloomberg also report on the new documents, as does Jess Bravin of the Wall Street Journal.

Julie Hirschfield Davis of the Associated Press (via the Kansas City Star) concludes that the final installment of documents “have left President Barack Obama’s Supreme Court nominee relatively unscathed and important details about her still a mystery heading into confirmation hearings for a lifetime job as a justice.”  Others continue to fill in biographical details from the more distant past.  In the New York Times, Lisa Foderaro and Christine Haughney have a lengthy profile of the Kagan family, which they describe as “a New York family whose intellectual dynamism and embrace of liberal causes provide a window onto the social milieu and culture that shaped” the nominee.  In the Philadelphia Inquirer, columnist Dick Polman compares Elena Kagan to Chauncey Gardiner, the protagonist of Being There, who becomes politically influential through adherence to inscrutable platitudes.

Former President Bill Clinton gave an interview about his former aide to Carl Hulse of the New York Times.  He described her as “unfailingly meticulous in trying to determine what the law actually is and what the facts actually were.”  In his view, “she is really sort of a common-sense progressive.   I think she has good liberal values, but she is also immensely practical, and I think she will be fair to both parties.”

In the Washington Post, Amy Goldstein reports that documents newly released by the Pentagon “show for the first time that the decision to resume [military recruiting coordinated through the law school’s career services office] was not primarily hers.”  Instead, “the controversy was resolved by Harvard’s president with little apparent input from Kagan.”  Bill Mears of CNN and Mike Allen of Politico also report on the Pentagon documents.

In the National Review Online, Robert VerBruggen notes that Kagan inquired into whether a 1996 bill to protect volunteers at nonprofit organizations from tort liability would apply to the National Rifle Association or the Klu Klux Klan.  Greg Sargent of the Washington Post has the White House response: Kagan was not comparing the two organizations, but rather separately concerned about the bill’s potential to limit the recovery of victims of gun violence on the one hand, and to shield hate groups on the other.

Finally, Sen. Mitch McConnell appeared on Fox News Sunday to discuss the Kagan nomination (transcript here).  McConnell left open the possibility that Republicans would filibuster Kagan, saying that “it is possible, but entirely too early to know whether that would be appropriate.”  Carol Lee of Politico and the Associated Press (via CBS News) report on Sen. McConnell’s comments.


  • On the Wall Street Journal’s Law Blog, Jess Bravin notes Sen. Al Franken’s recent address to the national convention of the American Constitution Society.  Sen. Franken criticized the Roberts Court, in a preview of themes that will be repeated during the Kagan hearings.
  • Clifford Marks (also of the Wall Street Journal Law Blog) reports on an amicus brief filed by the American Bar Association, in which the ABA “urg[es] the U.S. Supreme Court to hear a case about whether the level of judicial pay violates a constitutional guarantee to undiminished compensation for judges.”
  • Reporting on congressional efforts to lift $75 million cap on liability resulting from the Gulf oil spill, Michael Kirkland of UPI considers whether such efforts, if successful, could survive a constitutional challenge; he concludes that the answer “would depend on how a majority of justices view the nature of the fund.”
  • At PrawfsBlawg, Rick Hills analyzes the implications of last week’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection.