Pubdate: Sun, 13 Jun 2010
Source: New York Times (NY)
Page: WK9
Copyright: 2010 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Bookmark: http://www.mapinc.org/topic/crack+cocaine

ELENA KAGAN'S WHITE HOUSE YEARS

A bit of the fog is beginning to lift on the work and thinking of 
Elena Kagan, President Obama's nominee to the Supreme Court. An 
initial perusal of thousands of pages of documents from her years in 
the Clinton White House show her to be an adept centrist -- much like 
her old boss -- who tried to remain thoughtful while shielding 
President Bill Clinton from ideological extremes.

It is hard to find anything in the 90,000-odd pages of papers 
released so far that shows whether Ms. Kagan will be an effective 
restraint on the Roberts Court's aggressive march to the right. She 
was, after all, a mid-to senior-level bureaucrat in the 1990s, 
working for a White House that could twist itself into knots trying 
to find the midpoint on every issue. Her job often required her to 
become a contortionist, searching for principled positions that would 
not inflame a newly Republican Congress or a generally conservative 
Supreme Court.

In a 1997 memo on an affirmative action case, written when she was a 
presidential assistant for domestic policy, she could have backed a 
New Jersey school district that cited diversity in dismissing a white 
teacher instead of an equally qualified black one. Some in the 
administration wanted to do just that. But she sided with Walter 
Dellinger, then the solicitor general, who said the administration 
should back the white teacher to prevent the case from going to the 
Supreme Court, which could have used it to strike down a series of 
affirmative action programs. "I think this is exactly the right 
position -- as a legal matter, as a policy matter, and as a political 
matter," Ms. Kagan wrote.

She supported reducing the disparity between lighter criminal 
sentences for dealing cocaine powder and heavier ones for crack 
cocaine, a difference generally seen as favoring white defendants 
over black ones. The Congressional Black Caucus wanted to eliminate 
the disparity entirely, but Ms. Kagan and her supervisor, Bruce Reed, 
the domestic policy director, said that approach would never work 
with Congressional Republicans.

Some of the positions she took involved unfortunate concessions. When 
a California landlady refused to rent to unmarried couples for 
religious reasons, Ms. Kagan objected to a State Supreme Court 
decision that said the woman had violated antidiscrimination laws. 
She also dismissed New York City's objections to a provision in the 
welfare reform law that allowed city employees to turn in illegal 
immigrants, which violated a longstanding and exemplary city policy.

If nothing else, the papers should mute the Republican outcries that 
Ms. Kagan is a dangerous leftist, since they show she is nothing of 
the kind. But she will have to become much more than a conciliator to 
fill the shoes of the retiring Justice John Paul Stevens, in many 
ways the conscience of the current court. We hope that other 
documents to emerge in the weeks to come, and her confirmation 
hearings starting this month, will help fill in the many blanks about 
the nature of a future Justice Kagan. 
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MAP posted-by: Richard Lake