ELENA KAGAN'S WHITE HOUSE YEARS

A bit of the fog is beginning to lift on the work and thinking of
Elena Kagan, President Obama's nominee to the Supreme Court. An
initial perusal of thousands of pages of documents from her years in
the Clinton White House show her to be an adept centrist -- much like
her old boss -- who tried to remain thoughtful while shielding
President Bill Clinton from ideological extremes.

It is hard to find anything in the 90,000-odd pages of papers
released so far that shows whether Ms. Kagan will be an effective
restraint on the Roberts Court's aggressive march to the right. She
was, after all, a mid-to senior-level bureaucrat in the 1990s,
working for a White House that could twist itself into knots trying
to find the midpoint on every issue. Her job often required her to
become a contortionist, searching for principled positions that would
not inflame a newly Republican Congress or a generally conservative
Supreme Court.

In a 1997 memo on an affirmative action case, written when she was a
presidential assistant for domestic policy, she could have backed a
New Jersey school district that cited diversity in dismissing a white
teacher instead of an equally qualified black one. Some in the
administration wanted to do just that. But she sided with Walter
Dellinger, then the solicitor general, who said the administration
should back the white teacher to prevent the case from going to the
Supreme Court, which could have used it to strike down a series of
affirmative action programs. "I think this is exactly the right
position -- as a legal matter, as a policy matter, and as a political
matter," Ms. Kagan wrote.

She supported reducing the disparity between lighter criminal
sentences for dealing cocaine powder and heavier ones for crack
cocaine, a difference generally seen as favoring white defendants
over black ones. The Congressional Black Caucus wanted to eliminate
the disparity entirely, but Ms. Kagan and her supervisor, Bruce Reed,
the domestic policy director, said that approach would never work
with Congressional Republicans.

Some of the positions she took involved unfortunate concessions. When
a California landlady refused to rent to unmarried couples for
religious reasons, Ms. Kagan objected to a State Supreme Court
decision that said the woman had violated antidiscrimination laws.
She also dismissed New York City's objections to a provision in the
welfare reform law that allowed city employees to turn in illegal
immigrants, which violated a longstanding and exemplary city policy.

If nothing else, the papers should mute the Republican outcries that
Ms. Kagan is a dangerous leftist, since they show she is nothing of
the kind. But she will have to become much more than a conciliator to
fill the shoes of the retiring Justice John Paul Stevens, in many
ways the conscience of the current court. We hope that other
documents to emerge in the weeks to come, and her confirmation
hearings starting this month, will help fill in the many blanks about
the nature of a future Justice Kagan.