Solicitor General Email FOIA Shows White House Stunt Fail

In all the government shutdown, nuclear meltdown and Libya war of choice news dominating the media landscape the last couple of weeks, a completely juicy little tidbit was pried out of the Obama Administration by a right wing news outfit – and almost nobody picked up on it.

CNSNews, the cyber division of the Brent Bozell run right wing Media Research Center, has scored a bit of a coup with the acquisition of a set of FOIA documents from the Solicitor General’s office partially detailing the unusual grooming of Elana Kagan to ascend to the Supreme Court. The 66 pages of documents are fascinating and offer a unique and rare glimpse into the backstage machinations in the SG Office. The FOIA CNSNews issued was targeted almost solely at the great whale the Ahab like conservative right are pursuing, the Affordable Healthcare Act they unaffectionately refer to as “ObamaCare”.

Here is the thing, why would the Administration agree to turn over the emails? They are almost surely protected within the ambit of deliberative privilege exemption commonly recognized for the Executive Branch. Indeed, the first time CNSNews requested the records, the request was flatly rejected, back on June 22, 2010. But, the Administration, on its own, reconsidered, sought slight clarification and, finally, on March 15 of this year, delivered the FOIA records to CNSNews. The response letter from the Solicitor General’s office facially states that they would have been well within their rights to so withhold, but “it would be appropriate to release significant portions of such records requested as a matter of agency discretion”.

Uh huh. Experts in such matters were shocked. Kannon Shanmugam, a veteran of the SG’s office now with Williams & Connolly, stated (subscription may be required):

…the documents represent “an unusual if not unprecedented” look at the office’s operations. “It raises concerns about chilling lawyers in the office in the conduct of their work, and gives an incentive not to put things down in emails.

Indeed that would be seemingly very sound analysis. So, why did the Obama Administration give up the goods? For that, a quick look at what the emails depict, and what the FOIA asked for is necessary. As the FOIA search terms and parameters indicate, CNSNews was looking for instances of Elana Kagan’s Read more

Look on the Bright Side!!!

I’ve thought of some bright sides regarding the news that Elana Kagan is Obama’s pick to replace Stevens:

  • If ever SCOTUS needs money, Elana Kagan is a great fundrasier!
  • Imagine how it’ll make Republican heads explode when they realize Hamdan lawyer Neal Katyal may be Acting Solicitor General.
  • Given that Republicans will try to oppose Kagan on perceived sexual orientation, it’ll make potential gay bashing of Vaughn Walker over the Prop 8 trial much less effective and–assuming Kagan is confirmed–potentially counter-productive for the haters.
  • Next time someone has to defend the material support statute before SCOTUS, she probably won’t go so far as saying even lawyers who defend those accused of terrorist related crimes materially support terrorism.
  • Girls. Three of them. On SCOTUS. Just two more to go and we’ll have our fair share.

Got a bright side to the Kagan nomination? Put it in comments.