Kagan Opposed U.S. Assisted Suicide Ban, Papers Show

U.S. Supreme Court nominee Elena Kagan as an aide to former President Bill Clinton said that federal legislation criminalizing doctor-assisted suicide was a “fairly terrible idea,” according to newly disclosed documents.

Kagan’s hand-written note was included among 46,500 pages of records the William J. Clinton Presidential Library released yesterday. The documents shed new light on Kagan’s views on social issues including affirmative action, gun control and cloning.

The assisted-suicide note was prompted by Oregon’s 1997 enactment of a right-to-die law, which stirred an ultimately unsuccessful move by congressional Republicans to override the statute with a federal ban. In her note, after suggesting the possibility of Clinton backing such a law, Kagan immediately shot down the idea.

“This is a fairly terrible idea, but I know Begala likes it,” she said in the 1998 note, referring to Clinton adviser Paul Begala.

The papers are the first installment in a 160,000-page file. The library plans to release all of the material before the Senate Judiciary Committee begins confirmation hearings on June 28. Republicans have threatened to seek a delay if there isn’t enough time to review all the material.

President Barack Obama on May 10 nominated Kagan, 50, to replace retiring Justice John Paul Stevens. A former dean of Harvard Law School, Kagan is now U.S. solicitor general, the administration’s chief Supreme Court lawyer.

Kagan’s Note

At the time Kagan made the comment on assisted suicide, Republican lawmakers were proposing to use the U.S. Drug Enforcement Administration to stymie Oregon’s doctor-assisted suicide law.

Kagan was reviewing a draft Justice Department memo that said the DEA lacked power under the 1994 Controlled Substances Act to penalize doctors for giving life-ending drugs to terminally ill patients.

A later memo to Clinton by Kagan and her boss, domestic policy adviser Bruce Reed, addressed the difficulties of backing a federal ban. Kagan and Reed said that there were “real difficulties involved in developing medically sound legislation” and that an administration proposal “would anger most respected health-care organizations and the whole Oregon delegation” in Congress.

Right-to-Die Movement

Years later, in 2006, the Supreme Court bolstered the right-to-die movement by ruling that George W. Bush’s administration overstepped its authority by trying to use the DEA to block Oregon’s law.

White House spokesman Ben LaBolt said the documents “reflect Kagan’s efforts to advance President Clinton’s well- established policy agenda, and they should not be interpreted as an outline of her personal positions on specific policy issues.”

The documents released yesterday all stemmed from Kagan’s work on the Domestic Policy Council, whose role includes synthesizing the views of various administration officials and ensuring that the president hears any dissenting opinions.

On the issue of gun control, Kagan and Reed promised in 1999 to send Clinton a memo “outlining an aggressive strategy” for legislation. The memo was written a month after the April 20, 1999, massacre at Colorado’s Columbine High School.

Kagan’s approach toward gun rights has emerged as one of the few flashpoints in her nomination. The National Rifle Association has said it has “serious concerns” about her views.

Medical Marijuana

Kagan expressed skepticism about the medical use of marijuana in 1999, saying it wasn’t supported by existing research. At the time, the Department of Health and Human Services was preparing to facilitate research on the question, and Kagan was reviewing a draft question-and-answer handout about the department’s role.

“I don’t think we have any choice but to go along with the caveat that HHS emphasize, much more than it does here, that current research doesn’t support medical uses of marijuana,” Kagan said in a handwritten note to Reed.

Kagan expressed interest in the idea of “shaming” criminals after a 1997 Wall Street Journal editorial lauded the idea of efforts such as making convicted drunk drivers affix bright “DUI” stickers to their bumpers and requiring nonviolent sex offenders to post warning signs on their property.

“Do you think there’s a way of sensibly hooking into this trend?” Kagan wrote to two colleagues.

Cloning Ban

She opposed a ban on the creation of human embryos for scientific research.

“Prohibiting the creation of embryos for research using private funds could halt important research on infertility and possibly other medical conditions,” Kagan and another aide wrote in a 1997 memo to Clinton. The memo supported a moratorium on human cloning.

Her views squared with those of a bioethics advisory panel the president had asked to review the issue after scientists announced they had cloned a sheep.

Douglas Johnson, legislative director of the National Right to Life Committee, called the memo “very disturbing because she is advocating creating members for the human species purely to be used as raw material for research” that “will kill them.”

Affirmative Action

The documents provided new evidence of Kagan’s tactical instincts. When the Supreme Court in 1997 was considering a potentially landmark race case, Kagan advocated a course aimed at heading off new limits on affirmative action in employment.

The case involved a suit by a white high school teacher against a New Jersey school board that laid her off while retaining an equally qualified black colleague because of concern about the racial diversity of the faculty.

Kagan said she agreed with U.S. Solicitor General Walter Dellinger’s plan to urge the court to rule for the white teacher on narrow grounds in a bid to avert a sweeping defeat for affirmative action. Dellinger said the court was almost certain to side with the white teacher.

“I think this is exactly the right position -- as a legal matter, as a policy matter and as a political matter,” Kagan wrote on Dellinger’s memo.

The school district later settled the case, and the high court never ruled.

White House Records

With no judicial record of Kagan’s to examine, lawmakers and outside groups want to look into memos and e-mails she wrote while serving as a White House associate counsel in 1995 and 1996 and as a deputy assistant for domestic policy from 1997 to 1999.

Senator Jeff Sessions of Alabama, the Judiciary Committee’s top Republican, has said lawmakers may not have adequate time to review the documents before the scheduled June 28 start of the hearings.

“We are now a mere 24 days away from the hearing and the committee still has yet to receive over 100,000 pages of documents, called for in a bipartisan request,” Sessions said.

White House counsel Bob Bauer has asked the Archives to expedite release of the records. He told Sessions in a June 1 letter that, while Obama won’t claim executive privilege to shield any documents from disclosure, Clinton also has a right to block release.

To contact the reporters on this story: Greg Stohr in Washington at gstohr@bloomberg.net; Laura Litvan in Washington at llitvan@bloomberg.net.

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