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Analysis: Kagan's lengthy e-mail record details tough-talking lawyer

By Bill Mears, CNN Supreme Court Producer
  • 80,000 pages of e-mails show various sides of Supreme Court nominee Elena Kagan
  • Political instincts, ability to play rough revealed
  • Some profanity, hard-charging style displayed
  • Softer side also indicated

Washington (CNN) -- Every e-mailer's nightmare has become a political reality for Supreme Court nominee Elena Kagan, who has 11,000 electronic messages from her years in the Clinton White House now available for public consumption.

The 80,000 pages of material released over the weekend by the William J. Clinton Presidential Library reveal what previous documents dumps showed about the 50-year-old lawyer -- a super-smart, hard-working and politically ambitious woman, who occasionally ventured into sarcastic, profane, and funny asides.

All this matters because in one week, Kagan will go before the Senate Judiciary Committee for her confirmation hearings, and will face criticism from some lawmakers over her views from years gone by, and how they might impact her rulings from the bench. Much of the material from her academic and public service offers a clear outline of her views on such hot-button issues as gun control, affirmative action, gay rights and religious freedom.

The e-mails date from her four years in the West Wing -- as a lawyer in the White House counsel's office in 1995 an 1996 and as deputy in the Domestic Policy Council from 1997 to 1999.

For those who send and receive hundreds of such computer messages daily, it can be jarring to think that one day every response to the boss, every snaky comment or R-rated tirade will be scrutinized by senators, issue advocates and journalists. Such is the political reality high court nominees must face. Some 180,000 pages from her government service now constitute an open book, with the postscript yet to be written.

One common theme from the e-mails is her sharp political instincts. In May 1997 she warned her superiors against nominating David Satcher to be surgeon general. "The view from this office is that we definitely should not. He has done a lot of writing; some of it may be controversial," she noted, ironically, perhaps, since her own prolific paper trail may be viewed by some in the same vein. " All in all: we would be buying trouble."

Her self-assured advice did little good. Satcher was nominated four months later, and ultimately won approval.

Kagan displayed a quick wit and the ability to "dis" her boss without insulting him, at least too harshly. As number two in the Domestic Policy Council, her boss was an old Harvard friend, Bruce Reed.

In a series of exchanges in November 1997, Reed light-heartedly poked fun at Kagan's strong backing for a provision strengthening child support payments. Kagan bragged she had the support of top Clinton political aides Dick Morris and Rahm Emanuel. "You cannot long survive this onslaught," she boasts. Emanuel now is Obama's chief of staff, who privately supported her high court nomination.

She later displayed her loyalty to Reed and her willingness to play rough: "I'll be as insistent as I know how to be (which as you know, ...)," she wrote, just after settling into the post.

Occasionally that toughness turned tense. When a White house staffer cc'd Kagan to say, "We will have a policy announcement, of sorts, for the town hall meeting," she responded the next morning: "Of sorts??? Not quite the attitude we want to convey."

"Not to carp," she told a top Clinton education adviser, "but on memos to the president, it's usually wise to spellcheck." Many of her own formal memos, it should be noted, have their own spelling goofs.

Many messages have the abrupt code familiar to many e-mailers. "We must have done something wrong," she said in one note. "(Eat this message)."

Others have casual profanity, with the f-word and the s-word as apparent favorites of Kagan's. "Un-f---ing believable," said one. "That was clearly the question i f---ed up," said another.

Her and Reed's hard-charging ways apparently took a toll on Kagan's subordinates, raising questions about her temperament and management style.

In an April 1998 memo titled "Staff Morale," the Domestic Policy Council's chief of staff, Paul Weinstein, warned staff feelings were at a "low level." Part of it was due to the ongoing Clinton scandals, but also the long hours people were putting in, said Weinstein. He urged Kagan and Reed to give staffers credit on memos to the president, and to give them "significant" summer vacations.

"Sending congratulatory e-mails or voice-mails help," he said. There was no indication whether Kagan responded to the concerns, or whether morale in fact improved.

Republicans continue to raise questions about Kagan's statements and memos, saying her views suggest she would legislate from the bench and ignore court precedents.

"The more we examine her record, there are concerns that her legal judgments might be infected by her very liberal political views," said Sen. Jeff Sessions, R-Alabama, ranking member of the Judiciary Committee.

Many messages involve a key player in the Clinton White House: the first lady herself, Hillary Clinton. E-mail traffic indicates her views were strongly considered on a range of domestic issues.

In January 1998, a staffer asked Kagan if she knew of a policy announcement the first lady could make at an upcoming speech.

"I'm generally not in favor of FLOTUS announcing policy unless it's in one of her areas (e.g. child care)," Kagan said, using the acronym for the first lady of the United States. Clinton now is secretary of state.

Another e-mail in November 1997 details Clinton's participation in the Millennium Project, a United Nations-sponsored endeavor, designed to address a range of global challenges in the next century.

Kagan downplayed the mission. "My sense is that the first lady sees this as a cultural endeavor-- the millennium for PBS watchers," she noted dryly, referring to viewers of public television. There was no corroborating sense those were, in fact, the first lady's views.

And a softer side of Kagan pops up throughout the material. The New Republic profiled her admiringly in a May 1998 article, calling her "Wonderwonk," and "a nerd who can talk tough." Congratulatory messages poured in from fellow Clinton aides. Responding to one, Kagan self-deprecatingly said, "Embarrassing -- and more than a bit absurd, given what a team effort we had ... but my mother liked it."

Sources close to her recently noted she had quietly pushed to raise her public profile at the time, in anticipation of moving up in the executive branch or being nominated to the federal bench. She had hoped the magazine profile would give her a political career boost.

"Is there a need for someone to keep on top of the affirmative action issue -- for example, by working with Justice (Department) on its review of all affirmative action programs?" she inquired in one e-mail to her old friend Abner Mikva, then White House counsel. "I know the issue well (because I teach it) and care about it a lot; if there's stuff to do here, I'd love to do it."

It didn't happen. That and subsequent job promotions -- as well as a nomination to the federal appeals court -- never came to fruition. She left the White House the following year, back to academia, but not out of the spotlight.