The Kagan Nomination: The Shell Games Begin

by Pejman Yousefzadeh on May 21, 2010


Given the miniscule paper trail Elena Kagan has, it is especially important to be able to track down whatever she has written as an attorney, and allow the Senate Judiciary Committee to take a look at it in terms of evaluating her nomination. This includes memos that Kagan wrote while working for the Clinton Administration.

Some of the memos are privileged attorney-client communications, of course, and that means that the memos must be reviewed to ensure that privileged material is not released. According to this story, the document request served up to the Clinton library is very substantial, and requires time to be complied with–including, quite possibly, joint cooperation between both Clinton lawyers, and lawyers from the White House.

Now, Republicans put forth the altogether uncontroversial theory that because the document request will take some time to comply with, the Judiciary Committee ought to delay hearings until the request can be complied with.

And Democrats are refusing to go along with that request. Indeed, it would shock me–and it would probably shock a lot of other people as well–if the Judiciary Committee got a chance to see a significant number of the memos that Kagan wrote for the Clinton Administration, even if some of the memos were not privileged. The hearings will probably go ahead without the memos being made public, and with yet another portion of Elena Kagan’s record hidden from public review.

Back when George W. Bush was President, Democrats complained that whenever he put forth a judicial nomination, he expected the Senate to forget about the “advice” part of the “advice and consent” it was Constitutionally privileged to render in response to any personnel nomination. Look who has forgotten about the need for “advice” now.

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