Posted on June 23, 2010 at 9:39 am by Adam Chandler
For all round-up coverage of Elena Kagan since her nomination, see our collection of past links on SCOTUSwiki. Staff picks are marked by asterisks.
As next weekâ€™s confirmation hearings draw closer, the drumbeat of developments in nomination matters has quickened. Yesterday eight former Solicitors General released a letter of support for the Kagan nomination, in which they noted that â€œ[t]he job of Solicitor General provides an opportunity to grapple with almost the full gamut of issues that come before the Supreme Court and requires an understanding of the Courtâ€™s approach to numerous issues.â€ The signatories to the letterâ€”which was addressed to Patrick Leahy, the Chairman of the Senate Judiciary Committee, and Jeff Sessions, the committeeâ€™s ranking memberâ€”included every living former Solicitor General except for Robert Bork. The New York Timesâ€™s The Caucus blog, Bloomberg, and the WSJ Law Blog all have coverage of the endorsement. The Associated Press (via the L.A. Times) reports that a group of twenty-nine former Supreme Court clerks from the October Term 1987, when Kagan clerked on the Court, are also supporting her nomination. Those clerks include Miguel Estrada and Ron Klain, who is now chief of staff to Vice President Biden.
Meanwhile, after raising the prospect of a Republican boycott of the hearings with Politico on Monday night, Senator Jeff Sessions, the ranking Republican on the Judiciary Committee, has backtracked, saying that the GOP â€œfully expectsâ€ to attend the hearings. Politico reports that Sessions is seeking 1,600 documents from Kaganâ€™s time in the Clinton administration that were withheld because they contained â€œpersonalâ€ matters. But he says that a boycott would be appropriate only if â€œwe had a really serious situationâ€ in which important documents were being withheld. Vanity Fairâ€™s VF Daily blog also takes note of Sessionsâ€™s statements.
Washington, DCâ€™s FOX5 has an interview with CQ Politicsâ€™s Seth Stern on the criticism that Kagan is receiving from both liberal and conservative groups on her views on abortion.Â And Slateâ€™s Dahlia Lithwick previews Kaganâ€™s confirmation hearings, observing that â€œ[Kagan] isnâ€™t averse to tough scrutiny. Sheâ€™s simply ensured that her own background defies it. â€¦ Kagan has made herself into the perfect nominee.â€ Lithwick concludes with an observation that â€œthe journey to the Supreme Court has become the mirror image of a trip to Oz. You need to lose the heart, the brain, and the courage before anyone lets you in the door.â€ Writing for the New Republic, Justin Driver approaches the hearings from a different angle, specifically whether they can change the public perception of living constitutionalismâ€”â€œthe stakes,â€ he says, â€œcould hardly be higher.â€
The Associated Press (via NPR) also has a story on the mock hearings, or â€œmurder boards,â€ that serve as a rehearsal for Kagan before the curtains go up on her hearings next week. The story reports that â€œ[t]he process is shrouded in secrecy; the White House refuses to describe it.â€
In non-nominations coverage, the Courtâ€™s recent opinions are still receiving attention. At the Volokh Conspiracy, Eugene Volokh discusses the Courtâ€™s opinion in Holder v. Humanitarian Law Project, the Termâ€™s only war-on-terror case: he describes himself as troubled by the question of whether â€œspeech thatâ€™s independent of [foreign terrorist] organizations remains protected even if it ends up helping them.â€ Writing for the Huffington Post, Kay Guinane contends that â€œ[t]he chilling impact this decision will have on efforts to forge peace and protect human rights will mean more suffering for innocent bystanders in political struggles and lost opportunities for peace.â€ PrawfsBlawgâ€™s Rick Hills examines the â€œmaterial supportâ€ statute the Court upheld in the case, finding that it provides an â€œextraordinary grant of prosecutorial discretion.â€
Also at PrawfsBlawg, Adam Winkler highlights Justice Scaliaâ€™s â€œacerbic commentsâ€ in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the judicial takings case. (Disclosure: my law school clinic represented some of the respondents in the case.) Eduardo Penalver also offers his analysis of that decision (â€œstriking for its reasonablenessâ€) at PrawfsBlawg.
On the L.A. Timesâ€™s Opinion L.A. blog, Michael McGough emphasizes the narrowness of the Courtâ€™s ruling in the text-messaging case City of Ontario v. Quon, while at Balkinization, Frank Pasquale reacts to the Courtâ€™s role in workplace privacy with a shrug: â€œwhatever the drift of thought among swing justices, economic imperatives and cultural shifts will mean a lot less privacy in the workplace of the future.â€ (Disclosure: my law school clinic represented amici supporting the respondent in the case.) Also at Balkinization, David Gans â€œexplains why Rent-A-Center[ v. Jackson] mattersâ€ as â€œanother ruling in a long campaign by corporations to supplant judicial review with arbitration.â€ Finally, on his blog for the Atlantic, Barry Estabrook writes that although both sides of Monsanto Company v. Geertson Seed Farms were â€œecstaticâ€ about the Courtâ€™s ruling, â€œ[o]n balance, victory goes to those who oppose [genetically modified] crops.â€
- Michael Gerson has an op-ed in the Washington Post criticizing Senator Al Frankenâ€™s speech at last weekendâ€™s American Constitution Society conference and defending the Courtâ€™s conservative justices. Franken mocked the judge-as-umpire analogy, but Gerson supports it because a â€œjudge who does not think himself an umpire may end up an autocrat.â€
- The Hill has a story on abortion protesters who appear regularly at the Supreme Court. The protesters are part of the â€œChristian, anti-abortion-rights Bound 4 Life coalition, [which] has been sending small contingents to the Supreme Court for roughly hourlong silent prayers Monday through Saturday since the 2004 presidential election,â€ according to its executive director.
- C-SPAN offers video of a panel on Congress and the Supreme Court moderated by Linda Greenhouse and of an interview with Carrie Severino, whose group, the Judicial Crisis Network, is opposing the Kagan nomination.
- On her blog Court Beat, Joan Biskupic writes about Justice Scaliaâ€™s recent graduation speech at Langley High School, where one of his grandchildren was graduating.
- MSNBC.com examines the White Houseâ€™s record on judicial nominations and confirmations, highlighting its slow pace and noting that â€œsome of [the Presidentâ€™s] allies are disappointed.â€