Joe Conason thinks Elena Kagan chose politics over justice when advising former President Clinton on what to do about cocaine sentencing disparities. Below is an excerpt of Conason’s article
As first reported in Politico, Kagan prepared a memo on the issue in her role as deputy director of the president’s Domestic Policy Council in the late ’90s. Like several similar memos that indicate her “centrist” positioning on issues of race and reproductive rights back then, its blunt wording suggests that she never expected anyone outside the Clinton White House to read it.
“Our more nuanced message will not sell as well as the ‘tough on crime’ opposition message in an age of sound bites,” she explained, noting that congressional resistance to reforming the law would result in a stalemate. In essence, the memo advised Clinton to ignore the recommendations of his own Federal Sentencing Commission, which had studied the crack/powder problem as part of the 1994 Omnibus Crime Bill at the behest of the president.
The question that someone should ask Kagan, when she appears before that same committee for confirmation hearings, is whether she feels any shame over her evident eagerness to sacrifice decency for expediency. If she and her colleagues on the Domestic Policy Council believed the disparity unjust, shouldn’t she — and the president — have advocated change? Or would she seek justice only when victory is assured? It isn’t hard to imagine the scathing answer of the late Justice Thurgood Marshall, for whom Kagan clerked and whom she no doubt admired.