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Supreme Court: Kagan, Consensus Building, and ADR (Web)

There’s not a lot of mediation or ADR in the first batch of work documents released about U.S. Supreme Court nominee Elena Kagan last week.  

But there are two mentions of conflict resolution practices, and at least one was part of an effort that boosted mediation use in a prominent public agency. 

Kagan was the White House's representative for overseeing U.S. Equal Employment Opportunity Commission budget work as part of a significant civil rights initiative.  Though her role from the released documents appears to be more one of implementation than origination, the efforts coincided with a significant long-term boost in emphasis on mediation by the EEOC.

Also, Kagan provided backing for conflict resolution in civil rights as part of her job at the Domestic Policy Council.

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Kagan had been cited from the outset of her nomination as someone who brings people together. 

When President Barack Obama introduced his solicitor general as the nominee to replace retiring Associate Justice John Paul Stevens on May 10, he said that Kagan remains “respected and admired” for her “openness to a broad array of viewpoints.”

He said that Kagan follows a principle of “understanding before disagreeing,” a phrase the president attributed to Stevens. He added that Kagan exhibits “fair-mindedness and skill as a consensus-builder.”

The president noted that during her time as Harvard Law School’s acting dean, Kagan strongly encouraged students “from all backgrounds to respectfully exchange ideas and seek common ground.”

Kagan’s leadership, however, hasn’t intersected often with formal dispute resolution processes, at least insofar as the initial release of her work papers indicate.  But two mentions deserve ADR professionals' and followers' notice.

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On June 4, the William J. Clinton Presidential Library, in Little Rock, Ark., released the first parts of a reported 160,000 pages of documents from Kagan’s time with the Domestic Policy Council under the Clinton Administration. The DPC coordinates domestic policymaking processes at the White House and advises the president.

The files released concern the memoranda, correspondence, articles, and reports Kagan created and received during her work with the Council, where she served as deputy director. The topics cover an array of domestic policy issues including education, health, labor, welfare, and race.

For the first time, the release of these documents provides the country with a glimpse into Kagan’s perspective on a variety of topics, including alternative dispute resolution.

Kagan was “responsible for handling” an EEOC operations strategy, including ADR, that was introduced at a “Civil Rights Leadership Meeting” in April 1998.  The meeting was conducted by the Leadership Conference on Civil Rights, a 60-year-old nonprofit coalition of groups that advocate for better civil rights laws and enforcement. Kagan was a White House representative at the meeting, and also was assigned as a staff person for the Civil Rights Enforcement Budget, as part of her Domestic Policy Council duties.
The $279 million EEOC budget document produced for the civil rights meeting explained that its 1999 funds would be used to reduce the average time for resolving private sector complaints at the EEOC to six months, from 9.4 months, by 2001. 

The reduction, the paper states, would come “through a combination of investments in information technology, increased use of mediation and increased staffing.”

This paper is available at the Clinton Library here.

The budget document overseen by Kagan calling for increased mediation details then-House Speaker Newt Gingrich’s conditional support for the Clinton administration’s EEOC budget request based on, among other things, the agency’s “expanded use of alternative dispute resolution.”

The document discusses differences between the House and the Executive Branch over the EEOC budget, but increasing ADR was common ground.

Since that budget cycle, the EEOC has increased its use and promotion of mediation.

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Soon after, Kagan and Bruce Reed, Clinton’s chief domestic policy adviser, collaborated on the Domestic Policy Council’s December 1998 Mission Statement.  The memo provides an in-depth look at the DPC’s goals and objectives that Kagan helped implement.

In a goal labeled “Race,” which states that the DPC will “[c]ontinue to develop policies to promote the President’s race initiative” and strengthen civil rights laws enforcement, Kagan and Reed listed an objective that contained ADR:

Work to ensure increased funding for civil rights agencies and initiatives in the
appropriations process; promote emphasis on voluntary compliance, technical assistance, education, and dispute resolution; and assist in building support for the use of "paired testing" and other effective enforcement tools  

 The DPC document is available here.

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As more documents are released and review reveals new mediation and ADR experience by the Supreme Court nomine, CPR will post and try to categorize the documents here.

--Diana Gesualdi, CPR Intern