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Monday round-up

Above the Law reports that Justice Thomas, discussing clerk hiring at his Thursday talk at the University of Florida, contrasted his views with those of his colleagues, whom he says mainly hire clerks from Ivy League schools.  “I don’t believe they [Ivy League schools] have a monopoly on intelligence,” said Thomas. “I also don’t believe they have a monopoly on the best kids to clerk.”  Tony Mauro reports that Thomas also praised  Silvia Ibanez, an advocate from Florida who represented herself, and, according to Thomas, persuaded the Court to rule in her favor in a 1994 case.  The Foundry also weighs in, focusing on Thomas’ remarks on the State of the Union speech.  The University of Florida’s campus newspaper measures student reactions to the discussion.

Democrats are torn over whether to nominate a “prominent liberal voice,” relying on their Senate majority to ensure a confirmation, or appoint someone less likely to incite Republican opposition, notes Jess Bravin of the Wall Street Journal.  Some liberals, such as Professor Geoffrey Stone, would prefer President Obama to nominate a “Scalia of the left,” who would articulate a “robust philosophical alternative” to the Court’s conservatives, while other Obama allies caution that a candidate with a sharp liberal record would be a “target” in a nomination struggle that would consume the whole summer, thereby derailing the Democrats’ agenda.  The ABA Journal recaps recent coverage of the potential retirements of Justice Ginsburg and Justice Stevens.

On the subject of judicial vacancies, Doug Kendall of Slate notes that there are “102 vacancies on the federal bench,” and that “of these, 31 constitute judicial emergencies.”  Last year, Obama nominated thirty-three district court and court of appeals judges, and the Senate confirmed twelve; Kendall attributes the low number of nominations and slow confirmations to “obstructionist” Republican Senators, and a lack of nominations on Obama’s part.

The Chicago Tribune recalls Justice Alito’s question to Seth Waxman during the Citizens United oral argument (“…the only cases that are being, that may possibly be reconsidered, are McConnell and Austin. And they don’t go back 50 years, and they don’t go back 100 years”), reasoning that this is evidence that Alito specifically disagreed with Obama’s assertion at the State of the Union that the Court had “reversed a century of law.”

Writing for UPI, Michael Kirkland examines whether the Court would grant certiorari, if the lower court ruling were challenged, in Perry v. Schwarzenegger, the Proposition 8 trial.  Kirkland focuses on how Justice Kennedy might vote if the Court were to hear the case, and concludes that “in all probability” the Court will eventually hear the case.

The Court recently granted the NRA’s request to participate in the oral argument in McDonald v. Chicago, a Second Amendment challenge to a Chicago ban on handguns.  However, Robert Barnes of the Washington Post reports that Alan Gura, who will argue the case on March 2, is not interested in sharing the podium, or his argument time, with the NRA.

Rush Limbaugh, a conservative radio-show host, recently claimed that President Obama relied on professors to write his articles at the Harvard Law Review.  Ashby Jones at the WSJ Law Blog, drawing on commentary and Supreme Court precedents, examines whether the assertion is libelous, and if Obama should bring a defamation suit against Limbaugh.


  • Writing for, Damon Root suggests that judicial restraint has an inherent pro-government bias, and that even if the Court’s ruling in Citizens United departed from judicial restraint, the ruling protected “constitutional rights from democratic majorities.”
  • The Department of Justice filed a brief Friday urging the Court to dismiss Kiyemba v. Obama, an appeal filed by two Chinese Muslim Uighurs being held at Guantanamo Bay, reports Jurist.  Lyle Denniston of this blog also reports.
  • Above the Law analyzes the accuracy of predictions in’s Supreme Court fantasy league.  “The prediction pool,” Josh Blackman concludes, “is by no means infallible and may get cases wrong.”