Breaking News

Friday round-up

Speculation continues today over the “short list” of possible replacements for Justice Stevens, with a number of commentators focusing on the possibility that current Solicitor General Elena Kagan will be nominated to succeed him.  At Bloomberg, Greg Stohr speculates that Kagan’s “reputation as a bridge builder” during her years in the Clinton Administration and as dean of Harvard Law School may prompt President Obama to nominate her for a seat on the Court; Stohr also reports on the support that Kagan received from several prominent Republicans when she was nominated to serve as Solicitor General.  At Newsweek’s The Gaggle blog, however, Daniel Stone cautions that, if nominated and confirmed to the Court, Kagan’s service as Solicitor General might require her to recuse herself from as many as half of the cases heard by the Court over the next several years.

The BLT reports that, at a panel discussion Wednesday on potential nominees, SCOTUSblog’s Tom Goldstein and Jenner & Block’s Lindsay Harrison both predicted that President Obama will choose Kagan as Justice Steven’s successor, while Lawrence Hurley writes at the Los Angeles Daily Journal (via How Appealing) that, if nominated, Kagan will join a select group of Solicitors General nominated for positions on the Supreme Court: Justices Thurgood Marshall and Stanley Reed both moved onto the Court directly from their posts as Solicitor General, while former Solicitors General Robert H. Jackson and William Howard Taft both joined the Court later on in their careers.  Ashby Jones has his own round-up of nomination-related news at the Wall Street Journal Law Blog, and Tom Goldstein commented on the debate yesterday on this blog.

The media and blogosphere continue to report on other possible nominees as well.  At the Arizona Republic, Erin Kelly discusses the nomination prospects of former Arizona governor and current Homeland Security Secretary Janet Napolitano, whom experts say would bring diversity of experience to the Court.  At the Conglomerate blog, Erik Gerding suggests that the nomination of a Justice with a significant business background – which the Court has lacked since the retirement of Lewis Powell – might give the Court valuable perspective and have “collateral benefits” as well.  And at Slate, Dahlia Lithwick writes that law school students following the Court are disappointed that academic role models like Pamela Karlan, David Cole, and Walter Dellinger do not seem to be part of “even the long shortlist.”

Also addressing the future of the Court, Nina Totenberg has a lengthy interview on NPR’s Talk of the Nation in which she discusses the dynamics at the Supreme Court in light of the looming retirement of Justice Stevens.  A Boston Globe editorial, also considering the Court’s future balance, urges President Obama to consider candidates with backgrounds in electoral politics, rather than restricting his short list to candidates who have served as appellate court judges, while The Economist predicts that the President will select a young, pro-choice nominee.

The BLT reports on the appearance yesterday by Justices Breyer and Thomas at the Court’s annual budget hearing on Capitol Hill.  At the hearing, Justice Breyer offered his own theory for the Court’s “shrinking docket” and discussed the possibility of cameras in the courtroom, while Justice Thomas was taken to task by Rep. Barbara Lee over the issue of clerk diversity.  Above the Law comments on the exchange as well.  At the hearing, Justice Breyer also addressed the possibility that the new health care law would come before the Court in the coming years, as both Ashby Jones (at the Wall Street Journal Law Blog) and the AP’s Mark Sherman report.


  • The BLT reports that Senator Patrick Leahy met with Justice Stevens again on Tuesday.  As the chair of the Senate Judiciary Committee, Leahy will head the hearings to confirm Justice Stevens’ successor this summer.
  • The AP’s Mark Sherman reports that this will be the first Term in four years in which the Court has not released any same-day audio recordings of oral arguments.  (On Wednesday, Lyle reported on the Court’s reluctance to release same-day audio on this blog.) 
  • Concurring Opinions previews next week’s oral argument in City of Ontario v. Quon, in which the Court will address the Fourth Amendment’s application to text messages sent by a city employee on a city-owned pager. 
  • At the Volokh Conspiracy, Eugene Volokh looks back at a footnote in the Court’s 2008 ruling in District of Columbia v. Heller.
  • Daniel Solove, writing for Concurring Opinions, notes that at least three cases on the Court’s docket this term – City of Ontario v. Quon, NASA v. Nelson, and Snyder v. Phelps – implicate privacy law.  
  • ACSblog links to video of a recent panel discussion on the upcoming oral argument in Christian Legal Society v. Martinez.  (Lyle Denniston also previewed the upcoming oral argument yesterday for this blog.)
  • Planned Parenthood president Cecile Richards has a piece in the Huffington Post lauding Justice Stevens’ “understanding of women’s interest in both liberty and equality.”  The Justice’s positions in cases like Planned Parenthood v. Casey and Bray v. Alexandria Women’s Clinic, Richards writes, are particularly remarkable considering that he was appointed by a Republican president.