Clinton aide Kagan pursued liberal agenda with strong dose of legal, political practicality

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Kagan pushed liberal policies with pragmatism

WASHINGTON — Newly released documents from her days as an aide to former President Bill Clinton portray Supreme Court nominee Elena Kagan as a person of strong opinions and sometimes overtly liberal views, but above all a pragmatist who pursued middle-ground solutions on issues ranging from abortion to taking on Big Tobacco.

There’s little in the papers that suggests Kagan, President Barack Obama’s choice to succeed Justice John Paul Stevens, would stray far from Stevens’ perch on the left of the political spectrum.

In 46,500 pages of notes and memos from her time as a domestic policy adviser to Clinton, Kagan argues in favor of a veto of a late-term abortion ban, for strong gun control measures, against a federal law prohibiting assisted suicide and endorses a legal argument for affirmative action.

But she tempers much of her advice with strong notes of political and legal practicality, often opting for a middle course likely to produce results without unduly angering opponents.

The William J. Clinton Presidential Library in Little Rock, Ark., released the documents Friday, responding to a request from the Senate Judiciary Committee, which is scheduled to hold Kagan’s confirmation hearings starting June 28. They were the first installment in a 160,000 trove that senators have been eager to peruse for clues about what kind of justice Kagan might be.

In 1998, Kagan defended her boss’ veto of a measure that would have banned late-term abortions unless the life of the mother was in danger. She helped Clinton explain to a Catholic cardinal that he’d only support such a bill if it exempted cases where the mother’s health was at risk.

“I support an exception that takes effect only when a woman faces real, serious health consequences,” Kagan handwrote on the draft of a letter Clinton was writing.

Not long after, though, Kagan was advocating that Clinton embrace stricter limits on federal funding of abortion than pro-abortion rights groups wanted. She said the restrictions should apply to all Medicare-funded abortions.

That course, an internal memo noted, “stands the best chance of avoiding a high-profile legislative battle … that we are unlikely to win.”

Kagan wrote Clinton in 1997 advising him to submit legislation banning reproductive cloning but permitting cloning of embryos. In a memo she co-wrote with presidential science adviser Jack Gibbons, Kagan notes that the “right-to-life community” objects to embryo cloning, but says “there is no moral rationale” for treating them differently from embryos developed other ways when they’re being used only for research.

Kagan also personally counseled in unusually stark terms on the idea of a new federal law banning assisted suicide, which she wrote in 1998 would be “a fairly terrible idea.” Her handwritten note was part of an internal administration debate over whether doctors in Oregon should be allowed to prescribe fatal drugs to help terminally ill patients commit suicide.

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.

Conservatives said the papers sharpen their concerns about whether Kagan could be impartial.

“The documents show a politically savvy Kagan, and bring to the fore the question of whether she would be able to set aside her deeply ingrained political instincts to evenhandedly apply the law,” said Carrie Severino of the Judicial Crisis Network.

And Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, said the documents were emerging too slowly to allow senators a fair chance to fully evaluate Kagan.

“With each day that passes, I become more concerned that we will not receive documents in time for a proper review, or that they will be incomplete,” he said in a statement.

Still, the records were already filling out Kagan’s so-far thin public paper trail.

She endorsed a narrow legal argument to try to prevent a Supreme Court ruling that could effectively end affirmative action policies, calling it “exactly the right position” legally and politically.

And on guns, Kagan and her supervisor in 1999 promised Clinton a memo “outlining an aggressive strategy … to press for quick passage of our gun control proposals.”

In a memo, Kagan and Domestic Policy Council Director Bruce Reed praised a news story noting that the White House wanted to move on the initiative before Republicans and the National Rifle Association could mobilize against it, writing that the article had “perfectly conveyed our intended message.”

The papers also detail Kagan’s deep involvement in tough negotiations between liberal and conservative lawmakers on an ambitious — and ultimately unsuccessful — anti-smoking initiative.

She warned that slapping tough marketing restrictions on the tobacco industry as part of the measure might be unconstitutional.

“I’m not sure I buy the argument” by other administration officials that First Amendment concerns aren’t a serious issue, she jotted in the margin of a draft letter to a GOP senator on the subject. “We should enable the companies to agree on this.”

Friday’s release was from Kagan’s time as deputy director of the Domestic Policy Council, where she served from 1997-99. All but about 200 pages of the material were made public. Clinton asked to keep the rest secret, so they were handed over to the panel on a “committee confidential” basis that bars public access, a White House official said.

Kagan also served as a counsel to Clinton from 1995-96. She stepped aside last month from her post as Obama’s solicitor general to focus on winning confirmation.

Associated Press writers Jim Abrams, Matt Apuzzo, Jessica Gresko, Jesse J. Holland, Mark Sherman, Sharon Theimer, Hope Yen and Pete Yost in Washington and Jill Zeman-Bleed in Little Rock contributed to this report.