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Friday round-up

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.

Justice Souter was back in the news today after his commencement address at Harvard College (read the entire thing, as prepared for delivery, in the Harvard Gazette).  Martin Finucane distills the speech into a few paragraphs at the Boston Globe.

ABC News has released the transcript of George Stephanopoulos’s Wednesday interview with former Justice O’Connor. Peter Landers at the Wall Street Journal‘s Washington Wire blog highlights O’Connor’s description of the confirmation process as “a difficult, unpleasant experience.”

Following up on Justice Scalia’s comments earlier this week (see yesterday’s round-up for more coverage), Jonathan Adler at the Volokh Conspiracy agrees that Kagan is qualified to serve on the Court; the “bigger problem,” Adler suggests is the “relative lack of other [non-judicial] legal experience among the justices.”

The AP (via the Boston Globe) is reporting that two Republican Senators –  Lindsey Graham of South Carolina and George LeMieux of Florida – indicated yesterday that Kagan’s lack of judicial experience was not likely to be a concern; neither senator, however, committed to voting in favor of her confirmation.

Today’s papers feature two detailed stories on issues that are likely to be contentious in the confirmation debate. At the Los Angeles Times, James Oliphant discusses aspects of Kagan’s record that may lead to opposition from gun rights groups like the NRA, while Amy Goldstein at the Washington Post describes how, as dean of Harvard Law School, Kagan, “while staking out a tough stance against [military] recruiting” on campus — due to the military’s “don’t ask, don’t tell” policy — “maneuvered to facilitate it behind the scenes” by asking student veterans groups to take over.

Debate continues over how forthcoming Kagan should be during her upcoming hearing.  At the Atlantic, Stuart Taylor explains why he thinks Kagan should stonewall the Senate.  Using Justice Breyer’s record as an example, Taylor expresses doubt that any Justice who ran on his (or her) voting record on the Court could then be confirmed.  Meanwhile, Tony Mauro has an op-ed in USA Today arguing that “craftiness and candor” are the keys to Kagan’s success at her hearings, especially given her 1995 article opining that Justices ought to be more candid.  At Politico, Tevi Troy, who served as deputy director of the Domestic Policy Council under President George W. Bush, cautions that the release of Kagan’s emails from her stint in the same position may not reveal much about her personal beliefs, as the primary focus of that job is summarizing the various perspectives of others.

Commentators seized on a recent national poll by the Rasmussen Reports finding that forty-seven percent of Americans regard Kagan “unfavorabl[y]” (more than did a week ago), while only forty-three percent regard her “favorabl[y].”  In its own poll, USA Today finds that forty-six percent of Americans said they would “like to see the Senate vote in favor” of Kagan; when the same question was asked prior to their confirmations, Chief Justice Roberts and and Justice Sotomayor garnered sixty and fifty-five percent, respectively.  In an op-ed piece for the Los Angeles Times, Michael McGough asks why anyone should care about the public’s perceptions of Elena Kagan.  Kendra Marr at Politico discusses the White House’s strategy in recent weeks to shape public perception of Kagan.

Earlier this week, Professor John Yoo wrote an op-ed in the New York Times criticizing Justice Kagan’s views on executive power.  At Concurring Opinions, Lawrence Cunningham suggests that the criticism actually elevates Kagan’s views for the mainstream, because Yoo is widely deemed an extremist on the subject. Jim Downs, at the Huffington Post, views Kagan’s nomination as a disappointment to liberal activists.

At Bloomberg, Greg Stohr discusses the effect that Kagan’s confirmation could have on the Court’s gender dynamics; he cites a 2006 study on corporate boards suggests that the presence of three women on a board forms the “critical mass” needed to put women “on the same plane as their colleagues.”

In non-nomination news: The BLT reported yesterday that Acting Solicitor General Neal Katyal has notified the Court that some of the information provided to the Justices by a federal official and used in the recent juvenile life-without-parole case Graham v. Florida was inaccurate — specifically, the tally of federal inmates serving such sentences for non-murder crimes committed entirely before the age of eighteen.  Kent Scheidegger at Crime and Consequences chides the Court for using the data without verification.  Earlier this week, unrelated to the misinformation, Sherry Colb had a lengthy discussion of the ruling at Find Law.

Eugene Volokh continues his “short essay” on the Snyder v. Phelps funeral picketing case, granted for next Term, with a fifth installment at the Volokh Conspiracy.  Meanwhile, The Hill‘s blog reports that Democratic Senator Harry Reid is taking the “unusual step” of filing an amicus brief in the case supporting the grieving family, the Snyders.  At the Washington Post’s On Faith blog, David Waters summarizes the case and suggests that election-year politics may play a role in Reid’s decision to file a brief.


  • At Concurring Opinions, Robert Schapiro comments on the potential implications that the Court’s recent decision in United States v. Comstock – with its reliance on the Necessary and Proper Clause – could have on the new healthcare legislation if it comes to the Court.
  • David Kravets at Wired reports on a petition for certiorari that was filed recently in Harper v. Maverick Recording, a case involving music copyright infringement issues.
  • In another post, Wired notes that, in the ABC interview described above, former Justice O’Connor “extolled the virtues of videogames as a teaching tool for young kids.”
  • “Do liberals now own the mantle of judicial restraint?” wonders Nathan Koppel at the WSJ Law Blog.