Kagan, as Clinton aide, warned that tobacco marketing restrictions might not be constitutional

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Kagan files show pragmatic streak in tobacco talks

WASHINGTON — As an aide to former President Bill Clinton, Elena Kagan took a pragmatic approach to negotiating tobacco regulations with Republican lawmakers who were just months away from impeaching her boss, according to files sent to Congress Friday for her Supreme Court confirmation hearings.

Kagan also warned the White House that that slapping tough marketing restrictions on the tobacco industry could be unconstitutional.

Kagan’s memos and notes — part of a 46,500-page batch of records released by the William J. Clinton Presidential Library — reveal a practical nature as she tried to strike a tobacco deal that could not only be enacted by Republican-led Congress but also stand up in court.

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

“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.”

It was an example of the middle course Kagan was struggling to steer during intense negotiations with top Republicans on the long-shot tobacco compromise, which ultimately failed.

The files — whose release has been eagerly awaited by senators trying to find clues to what kind of justice Kagan may be — paint Kagan as practical even to the point of angering key supporters. In one typical memo from her and Domestic Policy Council Director Bruce Reed, she acknowledges that alienating public health advocates might be necessary in the interest of a deal.

“(W)e should not ask for more than we need to achieve our public health goals and in the process destroy any chance of industry acquiescence,” they wrote to Clinton in April 1998. “(E)fforts to push the price too far would be counterproductive because tobacco-state Democrats will join with Republicans to derail a bill that goes as far as some in the public health community might like.”

During that spring of 1998, long-brewing conflict between the White House and congressional Republicans was intensified by the unfolding independent counsel’s investigation of Clinton’s relationship with intern Monica Lewinsky. The House of Representatives impeached the president in December 1998.

The files are contained in the first batch of a 160,000-page trove of records from Kagan’s service in the former president’s White House. The Senate Judiciary Committee requested the papers last month, and the nation’s archivist promised to turn them over in time for Kagan’s confirmation hearings, now slated to start June 28.

Friday’s release is from Kagan’s time as deputy director of Clinton’s Domestic Policy Council, where she served from 1997 to 1999. 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, President Barack Obama’s choice to succeed retiring Justice John Paul Stevens, also served as a counsel to Clinton. She 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.

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.

Online: www.clintonlibrary.gov/textual-KaganDPC.htm