Kagan files show pragmatic streak in tobacco talks

Records released today show determination to strike a deal that could both be enacted and stand up in court

Published June 4, 2010 5:12PM (EDT)

As an aide to former President Bill Clinton, Supreme Court nominee Elena Kagan warned that slapping tough marketing restrictions on the tobacco industry could be unconstitutional. Her thoughts are revealed in newly released files handed over to Congress Friday.

Kagan's memos and notes -- part of a 46,500-page batch of records released by the William J. Clinton Presidential Library -- reveal her pragmatic streak as she haggled with a Republican Congress that was just months away from impeaching her boss. She wanted to strike a tobacco deal that could not only be enacted but also stand up in court.

In one note, Kagan argues that tobacco advertising limits should be voluntary.

Kagan says she isn't sure she buys the argument by other administration officials that First Amendment concerns aren't a serious issue.

THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP's earlier story is below.

WASHINGTON (AP) -- Supreme Court nominee Elena Kagan's paper trail is about to get a lot longer.

The William J. Clinton Presidential Library is scheduled Friday afternoon to release the first batch of a 160,000-page trove of records from Kagan's service in the former president's White House. The National Archives announced it would post 46,500 pages on the library's website.

Kagan, who is President Barack Obama's choice to succeed retiring Justice John Paul Stevens, served first as a counsel and then as a domestic policy adviser to Clinton between 1995 and 1999.

During that time, the White House was juggling a host of hot-button issues that could become flash points in Kagan's confirmation hearings, from gun control and abortion rights to a landmark anti-smoking measure that ultimately died in the GOP-led Congress.

Kagan, 50, stepped aside last month from her post as Obama's solicitor general to focus on winning confirmation.

Republican senators and conservative activists have complained that Kagan's views and judicial style remain a mystery because the public record from her professional past is so thin. The former Harvard Law School dean has never served as a judge, has little courtroom experience and published relatively little during her years in academia.

Sen. Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee, and its ranking Republican, Sen. Jeff Sessions of Alabama, requested the Clinton-era documents two weeks ago. Leahy scheduled Kagan's confirmation hearings to begin June 28, and the nation's archivist said his staff would finish sorting through and releasing the records by that deadline.

Sessions has since warned that he would ask for a delay unless the files were produced in time for senators to peruse them well in advance of questioning Kagan. Republicans don't have the power to change the hearing date, but they could seek to prolong the session or delay a committee vote on Kagan's nomination.

White House counsel Bob Bauer told Sessions in a letter this week that Obama does not intend to claim executive privilege to prevent release of the documents. If Clinton wants to keep anything secret, Bauer said, the White House would try to cut a deal that would satisfy both sides.

By Julie Hirschfeld Davis

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