From the Fineman interview:
HF: Yes, she was, and I think her role in the Clinton White House in those times was to supply the excellent and very detailed legal analyses that they would need to allow Bill Clinton to maneuver around to try to get himself reelected. She was very smart, but also very political, very politically astute, and I think always looking for ways to implement, to use Constitutional arguments to get Bill Clinton and his political advisors where they wanted to go.
HH: Now Howard, I’m trying to remember the issues which may come up, because of course none of this has been released yet. One would be obviously welfare reform and the Constitutionality of cutting in-place benefits. Another would be the Defense Of Marriage Act. ....
HF: And in an effort to get himself reelected after the Democrats were unseated in the House by Newt Gingrich in ’94. From ’94 to ’96, you remember, there were 100,000 cops and welfare reform, and all kinds of other things…
HH: And DOMA, Defense Of Marriage Act is there. ...
HH: Let’s imagine for a moment that there is, when I was in the White House Counsel’s Office, every piece of legislation that the president had to sign had to go through the Counsel’s Office first to have an analysis prepared, and perhaps a signing statement drafted for the president, and that’s in the Reagan years. I assume they did the same thing in the Clinton years.
HF: Yup, yup.
HH: So there may be a memo running around on, say, the Defense Of Marriage Act, which is just a horrible thing in the eyes of the left that her name may be on. Do you think we’ll ever see those memos, Howard Fineman? ...
HH: Yeah, I’m on the faculty of a law school for fifteen years, and I know what deans do, and that she has received glowing accolades from Charles Fried, solicitor general under Ronald Reagan, and other conservatives tell me that she’s going to have a fine time in front of the Committee, absent something coming out in the hidden paper trail. There’s a large paper trail here that causes controversy on the left, like a DOMA, like a Kosovo bombing thing.
And from the Chait interview:
HH: ... But I do want to ask you about the left, Jonathan Chait…
JC: Yeah.
HH: …because I suspect, from my time in the White House Counsel’s Office, when it was past practice that the Counsel’s Office reviewed every piece of legislation, and prepared a memo on it for the president, that there are a lot of memos in the Clinton White House files by Elena Kagan on things like the Defense Of Marriage Act… ...
HH: So what happens when a DOMA memo comes out and Elena Kagan’s on there saying you know, this is Constitutional. Does that fracture the left’s support of her? ...
HH: Well often, though, you’ll get dueling banjos in the Counsel’s Office. You’ll get one lawyer saying I don’t think DOMA’s Constitutional, or I don’t think welfare reform is Constitutional for the following reasons, and another one will say I disagree. ...
The National Review tosses in its two cents as well.
Hmmmm. I do not understand this line of attack. As a GOP party man and supporter of DOMA, Hewitt clearly salivates at the possibility that heretofore unseen memos might reveal Kagan's opposition to the Act.
I'm a little hazy on how this would hurt her chance at confirmation.
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