Updated: June 11, 5:04 p.m.
Republicans, hoping to derail the confirmation of Solicitor General Elena Kagan to the Supreme Court, have recently focused on “newly unearthed” documents from her time as a Supreme Court clerk — even though they not only had access to many of the publicly available documents last year, they also had asked her about them, Congressional transcripts show.
Senate Judiciary ranking member Jeff Sessions (R-Ala.) has sought to cast the memos as new, potentially devastating evidence that Kagan will use a position on the high court to pursue political goals. The documents, which cover abortion, gun rights and other hot-button issues, detail her work in the 1980s for Supreme Court Justice Thurgood Marshall, who retired in 1991.
“The newly unearthed memos reveal not only Ms. Kagan’s strong liberal views, but a willingness to bring those views into the courthouse — shaping and even replacing legal judgment,” Sessions said in a June 4 statement and reiterated at a news conference Thursday with Senate Minority Whip Jon Kyl (R-Ariz.).
However, these “new” documents come from Marshall’s papers and have been publicly available for nearly two decades. Additionally, Senate Republicans raised the issue of the memos last year during Kagan’s confirmation hearing to become solicitor general.
Stephen Miller, a spokesman for Sessions, said that while some of Kagan’s memos were discussed during her solicitor general hearing, Sessions’ staff has turned up a number of new documents following a fresh search of the publicly available material, including one memo concerning the child pornography case Vacanti v. United States.
“As part of the review process crucial to any Supreme Court nomination, committee attorneys have been diligently exploring the files at the Library of Congress, discovering documents in Kagan’s record … that not only were not addressed during Kagan’s [solicitor general] confirmation, but that were not even known about at that time due to the rapid hearing schedule for Department of Justice nominees in early 2009,” Miller said, citing the Vacanti memo.
“Many of these records were only just recently unearthed by committee staff,” Miller added.
Republicans also argued that even though Kagan’s memos are publicly available and GOP staff had reviewed the records held at the Library of Congress as part of her confirmation as solicitor general, many of the memos had not received any public attention.
“It is more than possible some of these materials are seeing public light for the first time,” a GOP aide said.
Sessions was particularly critical Thursday of Kagan’s memo on Vacanti v. United States, in which a man found guilty of buying child pornography accused the government of entrapping him. Kagan raised concerns over how the government caught the defendant, although she did acknowledge it was likely legal. Sessions argued that this memo and others indicated Kagan would bring her personal opinions into the courtroom.
Casting the memos as new evidence, Sessions argued that the child pornography memo and other documents “indicate a developing lawyer who has a political bent to their work.”
Kyl, who also serves on the Judiciary Committee, agreed, arguing that the memos “reveal time and time again an effort to achieve a certain result” from the law.
When asked why they were raising the issue as if it were new, both Kyl and Sessions said they did not attend the hearing at which the memos were addressed. Sessions said it may have been “the only hearing I missed last year.”
But according to the Congressional Record, Sessions appeared to have been well-versed in the content of at least one of the memos.
Sessions submitted follow-up questions to Kagan after her hearing that referenced not only the memos but also her testimony about them.
“During your confirmation hearing, you were asked about a memorandum you wrote in 1987 as a law clerk to Justice Thurgood Marshall,” Sessions wrote in his questions before asking about a case involving federal grants to religious organizations.
He continued: “When asked about your memo during your hearing, you described it as the dumbest thing I’ve ever read.’ You appeared to want to explain further why your 22-year-old memorandum was the dumbest thing,’ but time constraints and further questioning did not allow your explanation. I would like to give you the opportunity.”
In a statement released by his office late Thursday afternoon, Judiciary Chairman Patrick Leahy (D-Vt.) rejected the GOP’s characterization of Kagan’s memos, arguing they represented her efforts to apply Marshall’s judicial philosophy to cases.
“It is unsurprising that her evaluation of cases as a law clerk were mindful of Justice Marshall’s longstanding jurisprudence, and that her recommendations to him applied the lens through which he viewed cases and the law,” Leahy said.
He also questioned Republicans’ efforts to cast the documents as new evidence. “It is surprising, however, to see these documents described by some as newly discovered,’ since they have been publicly available since Justice Marshall left his documents to the Library of Congress upon his passing in 1993,” Leahy said. “They were available and known to the Senate last year when we considered and confirmed her nomination to be Solicitor General.”
But Sessions’ spokesman Miller defended Republicans’ emphasis on the Marshall documents, claiming that “dozens” of memos have been uncovered.
“In recent weeks, dozens of memos have been unearthed by reporters and by staff attorneys that were not on hand during Ms. Kagan’s confirmation as Solicitor General. The committee has undertaken a particularly extensive — and ongoing — search process yielding a number of memos not in the committee’s possession previously, or, for that matter, in the public light,” Miller said in a statement.