Confirmation-Lite: Clinton Library May Not Turn Over Documents For Kagan Confirmation Hearings

Some of us have long complained that confirmation hearings have become a rather bad joke (here) — carefully choreographed events devoid of substance. While many of us thought it could not positively become more content-free, it has. The director of the William J. Clinton Presidential Library and Museum has announced that the library cannot possibly turn over the prior writings of nominee Elena Kagan from her prior government service in time for the June 28, 2010 hearings. Rather than move the date, the Senate Judiciary Committee and White House appear intent on holding a hearing without the burden of knowledge of Kagan’s prior writings. Given her wafer-thin record of writing as an academic, that will guarantee a confirmation hearing that makes Dancing With the Stars looks like a tenure review meeting.

There is obviously a considerable conflict of interest in this process. The slower the review process, the less material can be disclosed. Both President Clinton and President Obama have a right to review the material before it is released. I have long been a critic of the Presidential Records Act and the control that former presidents exercise over their papers. For a prior column, click here. For prior testimony, click here. For a prior law review article, see Jonathan Turley, Presidential Records and Popular Government: The Convergence of Constitutional and Property Theory in Claims of Control and Ownership of Presidential Records, 88 Cornell Law Review 651-732 (2003).

Despite months of prior indications of Stevens’ retirement, the White House waited until this month to nominate Kagan and then insisted on a hearing date before the August recess. There is certainly a value to having a full court in place for the next session but that schedule left little time for review — and inevitably produced an administrative barrier for the release of information. This controversy could be the final proof that confirmation hearings have little to do with the merits or record of a nominee. Such material is now being dismissed as only marginally important to confirming an individual for a lifetime appointment on a court of nine.

The library has suggested sending Clinton and Obama lawyers to the library to pick out documents that they do not want released. In the meantime, Judiciary Committee chairman Sen. Patrick J. Leahy (D-Vt.) insisted that regardless of the withholding of such records, the June 28th date will not be postponed.

Henri Queuille stated that “politics is the art of postponing decisions until they are no longer relevant.” It appears that politics is also the art of rushing decisions so they are no longer recognizable. It is almost Zen-like in character: if a record is reviewed in a forest (or a presidential library) and no Senators are around to see it, is the nominee reviewed? I do not expect Senators to spend much time in the lotus position contemplating that question. It would be refreshing for Senators, however, to simply admit that they have little real interest in such records. Ironically, liberal groups have been clamoring for more review of issues like abortion, here. However, Democratic Senators would prefer to simply ask her about her views than have to address specific and divisive memos. She can then give a pre-written answer and invoke the Ginsburg rule to cut off further discussion.

We now have Lite Beer, skim milk, and sugarless gum. Why not have contentless confirmations — politically satisfying with no unsightly bulges or caloric intake?

For the full story, click here.

17 thoughts on “Confirmation-Lite: Clinton Library May Not Turn Over Documents For Kagan Confirmation Hearings”

  1. If this confirmation doesn’t sit well with you, maybe this affirmation will.

    It’s gone viral and CNN has picked up the story. Not on topic, but could be if you wished.


    Though, perhaps it was posted already.


  2. Quoted excerpts from Glenn Greenwald’s May 21, 2010 article with a twist regarding Ms. Kagan:

    “Obama wins the right to detain people with no habeas review

    Today, a three-judge panel of the D.C. Circuit Court of Appeals adopted the Bush/Obama position, holding that even detainees abducted outside of Afghanistan and then shipped to Bagram have no right to contest the legitimacy of their detention in a U.S. federal court, because Boumediene does not apply to prisons located within war zones (such as Afghanistan).

    So congratulations to the United States and Barack Obama for winning the power to abduct people anywhere in the world and then imprison them for as long as they want with no judicial review of any kind.

    One other point: this decision is likely to be appealed to the Supreme Court, which serves to further highlight how important the Kagan-for-Stevens replacement could be. If the Court were to accept the appeal, Kagan would be required to recuse herself (since it was her Solicitor General’s office that argued the administration’s position here), which means that a 4-4 ruling would be likely, thus leaving this appellate decision undisturbed. More broadly, though, if Kagan were as sympathetic to Obama’s executive power claims as her colleagues in the Obama administration are, then her confirmation could easily convert decisions on these types of questions from a 5-4 victory (which is what Boumediene was, with Stevens in the majority) into a 5-4 defeat. Maybe we should try to find out what her views are before putting her on that Court for the next 40 years?”

    End Quote.

  3. Thanks Isabel for your insight into the Navy Library and the culture there. I’m glad you’ve “come aboard” here at the blog too!

  4. I do volunteer work as a webmistress at the Navy Library in the Washington Navy Yard. This library contains records covering a period from 1795 (when the Navy was officially formed) to the present. I am sure there are many more records in the Navy Library than in the Clinton library.

    When an Admiral calls up and says “I want this”, the archivists put aside what they’re working on and get the Admiral what he (mostly) wants.

    The concept that the Clinton “archivists” don’t have the time to collect the records re one person (Kagan) is pure BS. They should be able to put their hands on what’s asked for immediately if the library is properly organized. After all they’ve been up and running a while.

    This story stinks and is an insult to our intelligence.

  5. Gyges,
    The Dems already have a reason, she was nominated by Obama. Besides, she probably just has fraudulent writings anyway.

  6. Did Elena Kagen get the nomination as a reward for her silence about Obama’s fraudulent Social Security number?

  7. Again, what is the rush here? Validating her credentials for one of our countries most coveted positions! We deserve to have the best! We have rushed more decisions in the past 2 years over fear and all have proven to be ineffective and costly. Our gov’t spending addiction is in the path of bankruptcy, they have not even created a budget! Our gov’t knows how bad things are going to be, they are trying to grab all the power and money they can get. We use to lead in industry, innovation and military dominance, now we are flying by the seat of our pants taking pop shots. War on our home turf is new to all Americans and we are just waiting for a BIG bomb to go off here! We need to stop siting on the sidelines watching our politicians mold our society into the shape they want, you need to start talking to your Senate and Congress men and women and see if they support your beliefs, if not talk a little harder!

    Whew, now I feel better, Thanks!

  8. Raff,

    While most Republicans might not need a reason to vote against her, I’d hope everyone else would need a reason to vote for her.

  9. Who needs her writings? The Republicans have already stated that they will not vote for her, so why waste the time?

  10. Actually, the Clinton library is part of NARA, the National Archives and Records Administration, which is staffed by archivists (sometimes called curators of records.) Archivists have master’s degrees in processing and organizing documents, creating finding aids as a way to locate records,(similar to, but different from a library catalog,) and identifying those documents which need to be withheld from public view because of records laws (including the presidential records act.) Archival documents take time to process, and I’m sure the Clinton Library has a huge backlog of materials that need to be processed, and not enough staff or funding to do it. Processing is usually done according to freedom of information act requests, in order by request date, and then by collection importance. The library had no way of knowing prior to Kagan’s nomination that the documents concerning her would be needed, and are probably just now locating them and beginning basic processing. Give the archivists some time to do their jobs.

  11. Neither competence nor incompetence in a vacuum, in the pure abstract.

    We must add mores to the mix in order to give context and definition.

    If the powers that be want her there for their reasons, and have found a way to do that regardless of our protestations, like with Roberts, Alito, and Thomas for example, then we are the incompetents:

    On the other hand if they have practised cunning deceit, posing as genius, to implant their minions, then we must ride with Robin Hood:

  12. Our government fails when ‘vetting’ big business, big oil, and big law…

  13. Buddha Is Laughing

    This is why both major parties need to go. Not only are they congenital liars, but they are increasingly bad at it.


    Truer words were never spoken.

    “Whoever is careless with the truth in small matters cannot be trusted with important matters.” (Albert Einstein)

  14. I think that the librarian stated that they could not possibly get the records by the June 28th hearing and since the confirmation hearing will not be adjourned then, what?

    Lets face it, it could not be as bad as Bork or even Thomas. She has a 50/50 shot at that rate. Unless she really has something to hide what has she written that could possibly keep her off of the court. I think that is Obama has any chance of filling the vacancy without more ado is before the August and November Primaries and General elections. Not that I think that they are going to flip, but you could have a lot more incumbents not reelected this year than ever before, including GOP’s.

    I think that nations dissatisfaction is with anyone that is in office now. However, I could be wrong.

  15. I want to know what kind of incompetent asshat of a librarian cannot gather any amount of material in their collection with a month to do so. Librarians (and curators) have the job of knowing where everything in the collection resides at any given time. It’s their most basic job description. The rest is simply taking it off the shelf.

    So the reason Kagan won’t get the scrutiny she deserves (and which I think would sink her nomination) is because some moron hired by morons can’t even do the basics of the most basic required of their job description?

    This is why both major parties need to go. Not only are they congenital liars, but they are increasingly bad at it.

    Incompetence! It’s what’s for dinner!

    It was the aggregate weight of the straws that broke the camels back, Washington. Remember that when the torch bearing mobs show up for your lot. Because eventually they will.

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