Clinton records offer clues to pragmatic, sometimes unpredictable high court nominee Kagan

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Documents offer sketchy clues to pragmatic Kagan

WASHINGTON — From welfare and assisted suicide to police rights, a few scribbled notes and brief e-mails offer an outline of Supreme Court nominee Elena Kagan as a pragmatist with sometimes unpredictable views on hot-button topics when she was domestic policy adviser to President Bill Clinton.

Discussing the effects of the 1996 welfare reform that Clinton signed into law, Kagan took an unsentimental approach in backing the filing of a legal brief saying that illegal immigrants aren’t entitled to routine prenatal care.

“It looks pretty clear to me that the brief is right in saying that the welfare law forbids illegal aliens from receiving Medicaid coverage for non-emergency prenatal care,” Kagan wrote in a 1997 e-mail.

A year later, she offered a more compassionate view in commenting on an administration debate about an Oregon law that allows doctors to prescribe fatal drugs to help terminally ill patients commit suicide. Kagan said a proposed federal ban on assisted suicide would be “a fairly terrible idea.”

These snippets were among 46,500 pages of Kagan’s records that the William J. Clinton Presidential Library in Little Rock, Ark., released Friday in response to a request from the Senate Judiciary Committee. Kagan’s confirmation hearing before the committee is scheduled to begin June 28.

In all, the documents offer hints but little definition of President Barack Obama’s choice to succeed Justice John Paul Stevens, who led a four-justice liberal bloc on the court. As with many faded or blurry pictures, there’s just enough material for people to see what they want.

The White House cautioned against reading the files as an indication of Kagan’s views.

“The documents reflect Elena Kagan’s efforts to advance President Clinton’s well-established policy agenda, and they should not be interpreted as an outline of her personal positions on specific policy issues,” said Ben LaBolt, a White House spokesman.

Friday’s release, which contained relatively few pages of material written by Kagan, was the first installment of some 160,000 pages the library has identified. Kagan was a domestic policy aide from 1997 to 1999, after spending two years as a lawyer in the White House counsel’s office.

The material contained occasional frank assessments of the work of other administration officials, as when Kagan weighed in on internal “discussion points” about a Medicare lawsuit. “These are the most disingenuous ‘discussion points’ I can imagine. If anyone believes these, I have a bridge to sell. Elena,” Kagan wrote to colleagues.

She displayed skepticism about medical uses for marijuana, suggesting that a paper by the Health and Human Services Department needs to “emphasize, more than it does here, that current research doesn’t support medical uses of marijuana.”

Kagan, and her boss, Bruce Reed, also were deeply involved in Clinton’s decision to keep in place a ban on the use of federal money for needle-exchange programs to reduce the spread of HIV. She appears, from notes Reed sent her, to have been charged with drafting the memo that laid out options for the president and recommended the course he eventually chose.

Clinton acknowledged that the programs helped reduce the spread of HIV and did not contribute to drug abuse, yet he declined to lift the funding ban, a decision he later said he regretted. Congress repealed the ban last year and Obama signed it into law.

Kagan showed support for aggressive police work when she suggested in 1997 that the administration file a Supreme Court brief in support of a ruling that allowed police to enter a home without knocking and announcing their presence when they were in pursuit of evidence of illegal drug dealing.

The Supreme Court had previously ruled that police must generally knock and announce before entering a home. The high court said it would review a Wisconsin Supreme Court ruling that laid out a blanket exception to that rule to allow police to go after illegal drugs.

“Do you think it makes sense to ask DOJ to file an amicus brief supporting the decision?” Kagan wrote.

The court unanimously upheld the actions of the police officers in the case at hand but declined to endorse the broad reasoning of the Wisconsin court.