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Thursday round-up

Yesterday’s Sixth Circuit judicial conference brought together a number of figures from the Supreme Court limelight, including Justice Stevens and Solicitor General Elena Kagan, a potential nominee to replace him.  The Associated Press (via NPR) reports that Justice Stevens criticized the practice of attempting to ferret out nominees’ views on particular issues: “What they’ve said in published opinions is one thing, but speculating about issues is another.”  Joan Biskupic of USA Today also reports from the conference; she highlights the Justice’s discussion of his new view that the death penalty is unconstitutional – which, he explained yesterday, is influenced by a higher risk of wrongful convictions.  Meanwhile, Jess Bravin of the Wall Street Journal focuses on the Justice’s support for life tenure for federal judges.

At the conference, Kagan skirted the subject of the impending nomination.  Bravin reports, again in the Journal, that she identified the “honest services” trio of cases as likely having the broadest practical impact for the Justice Department this Term: “In the rest of the Justice Department [outside the Solicitor General’s Office], this is a three-case term. And the cases are Black and Weyrauch and Skilling” (see their SCOTUSwiki pages here, here, and here).  USA Today‘s The Oval blog provides Joan Biskupic’s report on Kagan’s appearance at the conference; when former Solicitor General Paul Clement and Erwin Chemerinsky of U.C. Irvine’s law school joined Kagan on the stage, the three agreed that “Justice Anthony Kennedy’s influential position at the center of this ideological court will only deepen” after Justice Stevens steps down.  At the Washington Post, Michael Shear and Robert Barnes report on Kagan’s comments on Humanitarian Law Project v. Holder, in which she argued earlier this Term in support of the federal statute banning “material support” for terrorism.

Speculation continues about the timeline for the nomination after Obama finished his interview with a fourth potential nominee, Diane Wood, Tuesday.  According to the same post on The Oval blog, White House spokesman Robert Gibbs says the president is “getting closer” to a nomination (though “ABC’s Jake Tapper couldn’t help but ask: Isn’t that just a matter of ‘chronological fact?'”).  In the Washington Post story mentioned above, Shear and Barnes suggest that “next week is likelier than this week” for an announcement, because Vice President Biden — whom Obama may want around “as the drama unfolds” – will not return from a trip to Europe until early next week.  Fox News also has a story on the timeline.

Yesterday President Obama met with two Republicans on the Senate Judiciary Committee, Jon Kyl and Orrin Hatch to discuss potential nominees.  As Jared Favole for the Dow Jones wire (via the Wall Street Journal) reports, after the meeting Senator Hatch issued a statement in which he emphasized that, “[a]fter the highly-contentious health care debate, it is more important than ever that the President choose someone who will get overwhelming support from the American people and the United States Senate.”

Obama aide David Axelrod suggested that the president is looking for a nominee who could bring leadership qualities similar to those of Justice Stevens to the Court, as the Associated Press (via NPR) reports; Nancy Benac of the Associated Press (via the Huffington Post) discusses how the short-list candidates for the nomination have conducted themselves, suggesting that each should “act as if you’re not going to be the pick.”  Kent Scheidegger at Crime and Consequences denounces the advantage that may be gained in the nomination process by judges with former law clerks in politics, as described Tuesday by Jess Bravin in the Wall Street Journal.

Analysis of individual candidates abounds.  The Huffington Post examines Kagan’s college days, including election night in 1980, when she sobbed about Democrat Elizabeth Holtzman’s loss in the New York Senate race.  Bill Mears of CNN has an extensive profile of Kagan (and he had an extensive one of Wood, too, here on Tuesday).

Meanwhile, David Lat at Above the Law predicts that the President will nominate Diane Wood on Monday.  He provides a list of ten arguments in her favor, including the fact that she is the most liberal short-list candidate and Obama should “put his best — i.e., most liberal — foot forward” while the Democrats still have fifty-nine seats in the Senate.

Paul Wachter of AOL News names “six things to know” about Sidney Thomas, including that he represented large media outlets like CNN as a private attorney and that, as a judge, “he’s ruled on behalf of the little guy,” while Michelle Olsen at the Appellate Daily blog posts on his three latest opinions.


  • The editorial board of the New York Times opines that California “went too far” when it passed a law restricting the sale of violent video games to minors.  Last week, the Court agreed to review whether the law violates the First Amendment in Schwarzenegger v. Video Software Dealers Association.
  • The New York Times‘s Peter Baker reviews the new documentary Advise & Dissent, which focuses on the politics and activism behind the scenes of the Roberts, Miers, and Alito nominations.
  • ACSblog highlights a recent American Constitution Society issue brief on state laws that bar people with criminal records from voting, in light of the Court’s recent call for the views of the Solicitor General in Simmons v. Galvin.
  • Yesterday, the new book produced from the C-SPAN documentary of the Supreme Court –featuring lengthy interviews with the Justices — officially went on sale (see it on Amazon).