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Papers show Kagan's effort to get hearing on appeals court nomination

By Bill Mears, CNN Supreme Court Producer
  • Newly released papers touch on Elena Kagan's 1999 appeals court nomination
  • GOP Judiciary Committee chairman held up consideration
  • Kagan asked White House to say "simple fairness requires" she be given a hearing
  • The seat remained vacant until 2003, when now-Chief Justice John Roberts was appointed

Washington (CNN) -- A decade before being tapped by President Barack Obama to sit on the Supreme Court, Elena Kagan voiced frustration over her ultimately failed 1999 nomination to a federal appeals court seat.

Documents released Friday by the William J. Clinton Presidential Library reveal the intense internal fight between the Clinton White House and Senate Republicans to give Kagan a hearing over her nomination to the prestigious U.S. Court of Appeals for the District of Columbia Circuit. Four current members of the Supreme Court had served there, and it is often viewed as the nation's second most powerful federal court, and a stepping stone to the high court.

Clinton had nominated Kagan after she had worked for four years in two top administration posts. At the time she had just joined Harvard Law School as a professor.

Senate Judiciary Chairman Orrin Hatch, R-Utah, held up consideration of Kagan, saying the White House had refused to turn over certain internal documents relating to her work as an associate White House counsel.

In a handwritten letter dated April 3, 2000, to Clinton staffer Sarah Wilson, Kagan said she was submitting supplemental material requested by the committee, but was concerned the process was being unnecessarily delayed.

"Please recall that we spoke as well of adding some language to the top or bottom of the letter" to the committee, she wrote, "to the effect that simple fairness requires giving me the opportunity to clear my name in a hearing (or something like that)." She signed it "Elena."

With Clinton set to leave office in nine months, the White House was concerned Kagan's and other executive and judicial nominations would languish in an election year, and eventually fail if a Republican was elected to the White House. That is exactly what happened when George W. Bush took over the presidency in 2001.

Sources close to Kagan have said in recent weeks that she was extremely disappointed at the time of not fulfilling a long-held dream of serving as a federal judge, and had worried she would never again get the opportunity to sit on the bench.

Kagan was nominated in June 1999, but she never received a hearing or final Senate vote, and the job remained unfilled until John Roberts took the seat in 2003. Two years year later, he became chief justice of the United States.

The White House counsel's office had worked tirelessly to press for Kagan's judicial confirmation. One sticking point was her involvement in the Clinton administration's response to the protest and takeover by environmentalists at an Oregon national forest site. Congressional Republicans were investigating the White House handling of the episode, including rumors an unnamed Clinton official had improperly leaked law enforcement information to the protesters.

Weeks after Kagan's memo, Beth Nolan, then White House counsel, wrote to Hatch in April 2000, saying concerns raised by Republicans "should not delay Professor Kagan's confirmation." Nolan claimed a congressional task force "never asked to meet with or question" Kagan about the allegations.

"I ask you not to allow Professor Kagan to become a casualty of these differences" over how the administration handled what was called the Warner Creek matter, wrote Nolan, now general counsel at George Washington University. Notes provided by Kagan, said Nolan, "cast absolutely no doubt on Professor Kagan's conduct in this matter or her fitness to serve on the D.C. Circuit."