Monday round-up

By James Bickford
on Apr 19, 2010 at 9:45 am

With the Court returning from its April recess, attention is again being paid to the current Justices and the Court’s docket.  In the Washington Post, Robert Barnes previewed this morning’s argument in Christian Legal Society v. Martinez, involving the application of a non-discriminatory funding policy to a student group at a state university.  Warren Richey did the same in the Christian Science Monitor, as did Nina Totenberg on NPR.  Totenberg described Christian Legal Society as “a major case testing whether state colleges and universities can deny official status and subsidies to student groups that bar homosexuals and other groups from membership.”  (Last week, Lyle Denniston previewed the case for this blog here.) 

The New York Times editorial board opined that the student group at issue is merely “being told that if it wants an official association with a public university and public money, it cannot deny gays, non-Christians or members of any other protected minority equal rights.”  The Washington Post, by contrast, described the university’s policy as “politically correct, legally wrong,” raising the specter of “gay student organizations forced to accept those who believe that homosexuality is an abomination” or a “law association for African American students being told that it must let white supremacists run for leadership posts.”  The Los Angeles Times urged the Court to issue a narrow ruling that, because the student group “conditions membership on belief and conduct, not [sexual] orientation,” it had not engaged in any impermissible discrimination.  In a Washington Post op-ed, Jonathan Turley suggested that “[w]e need to accept that certain forms of government support are meant to foster associations generally and should not turn on the insular views of any particular group.”  Newt Gingrich and Jim Garlow published an opinion piece in the Post in which they urged the Court to strike down the school’s nondiscrimination policy.

Although the current nine Justices are back on the bench today, the discussion of potential successors to Justice John Paul Stevens continues.  In the Washington Post, Peter Slevin reported on the abortion jurisprudence of Seventh Circuit judge Diane Wood, noting that “social conservatives say they intend to make her rulings on abortion rights the primary point of contention” if she is nominated to the Court.  Andrew Harris and John McCormick of Bloomberg.com also profiled Judge Wood, while Lorna Thackeray of the Billings Gazette has a profile of the Ninth Circuit’s Sidney Thomas, also mentioned as a potential nominee.  The Associated Press reported (via the Washington Post) that former President Clinton considered both himself and Secretary Clinton too old for a nomination to the Court.

In the Washington Post, Amy Goldstein reported on Elena Kagan’s stance on on-campus military recruiting while she was dean of Harvard Law School.  Goldstein suggested that Kagan’s opposition to the practice might cause controversy in an eventual confirmation hearing.  At Salon.com, James Doty described Kagan’s treatment at oral argument as “unusually brusque.” Former Solicitor General Walter Dellinger wrote for Slate that Elena Kagan is, contrary to suggestions by Glenn Greenwald, “fundamentally progressive” in her views on executive power.  Tony Mauro of the National Law Journal reported on the concern of “liberals who warn [that Kagan] is too conservative to follow in Stevens’ progressive footsteps.”  At Balkinization, Mark Tushnet counseled patience in response to liberal frustrations with the potential nominees.  Stuart Taylor Jr. of the National Journal opined that the nominee would have little to no impact on the ideological balance of the Court, but Tom Goldstein of this blog concluded after a lengthy analysis that a nominee might swing the court on questions – such as executive power and preemption – that “do not necessarily track the traditional liberal-versus-conservative breakdown.”  Tom also analyzed whether General Kagan, if nominated, would have to recuse herself from a disproportionate number of cases in which she was involved as the Solicitor General.  He estimated that General Kagan would have to recuse herself from thirteen cases in her first term, and five in her second.

Adam Liptak of the New York Times wrote that because recent nominees to the Court have had extensive paper trails from their time in the executive branch or on the federal bench (or both) their ideological positions have been more easily predicted.  The last nominee without considerable experience of either sort was Justice Souter.  Laura Meckler of the Wall Street Journal reported on the relative advantages offered by nominees with political or judicial backgrounds. 

Charlie Savage sketched the grounds on which Republicans might oppose each of the three nominees thought to be most likely.  In the New York Times, Peter Baker set the recent conflict between President Obama and Chief Justice Roberts in the context of historical confrontations between the president and the Court, and suggested that “Mr. Obama has Chief Justice Roberts on his mind as he mulls his second” appointment to the Court.  Michael Kirkland of UPI reported on the political jockeying of Senators in advance on the nomination.  David Welna reported on Republican filibuster threats.  At Balkinization, Sandy Levinson compared the negotiations over judicial nominees to nuclear disarmament.

The Wall Street Journal published op-eds by Richard Garnett, describing the historical circumstances of the religious shift on the Court, and John Yoo, discussing the impact of the Stevens retirement on the Court’s national security jurisprudence.

Friday’s confirmation hearings of Goodwin Liu, nominated for a seat on the Ninth Circuit, garnered a great deal of coverage, in part because of the prospect that the dispute over Liu could foreshadow a battle over the nomination of a successor to Justice Stevens.  James Oliphant of the Los Angeles Times reported that Liu “faced a fusillade of criticism… from Senate Republicans who questioned his fitness for the bench.”  Bob Egelko of the San Francisco Chronicle (who previewed the hearing here) reported that the nominee “remained unruffled during the 3 1/2-hour hearing, saying repeatedly that he would set aside his personal views but not his human responses to the cases he would face if confirmed.”  Eric Liu of Politico suggested that Republicans were using the Liu (no relation) nomination as a dress rehearsal for a Supreme Court nomination.  Ben Pershing filed a report for the Washington Post, as did Rob Hotakainen of McClatchy Newspapers, Kasie Hunt of Politico, Laura Litvan of Bloomberg.com, Bill Mears of CNN.com (preview here), Susan Crabtree of The Hill, David Ingram of the National Law Journal (blog posts here and here), and David Welna of NPR.  (Nina Totenberg had previewed it here.)  Gerard Magliocca discussed the hearing on Concurring Opinions.  The Wall Street Journal published an editorial opposing Liu’s confirmation and encouraging the Senate to “consider the academic work that forms the basis of his legal expertise.”  (At his hearing, Liu asserted that “[w]hatever I may have written in the books and the articles would have no bearing on my action as a judge.”)  In their report for ABCNews.com, Ariane de Vogue, Dennis Powell and Devin Dwyer recounted a conversation between Liu and his young daughter: three days after his nomination, she asked “Daddy, are you a judge yet?”

Briefly:

• At the New Republic, Barry Friedman and Jeffrey Rosen described and defended their view that the Court usually keeps itself in line with public opinion.  At PrawfsBlawg, Rick Garnett discussed the article.
• In an appearance at the University of Virginia, Justice Scalia articulated his originalist philosophy of judicial interpretation and promoted his book on the art of persuading judges.
• CSPAN broadcast footage of the appearance of Justices Breyer and Thomas before the House Appropriations Committee.
• In the National Law Journal, Carl Tobias called attention to the less-publicized judicial vacancies: the 103 empty posts in the district and circuit courts.
• For Metro Weekly, Chris Geidner reported on Edward DuMont’s nomination to the Federal Circuit.
• At Concurring Opinions, Daniel Solove discussed the nuances of the Fourth Amendment question at issue today in City of Ontario v. Quon, and Nate Oman defended Chief Justice Roberts’ metaphor of the judge as umpire.
• Mary Ann Sorrentino recounted a letter she had written to Justice Blackmun, thanking him for Roe v. Wade.  He responded with gratitude.
• Ross Guberman posted an article on “Five Ways to Write Like Elena Kagan.”