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Thursday round-up

Yesterday Senate Judiciary Committee Chairman Patrick Leahy set the date for Elena Kagan’s confirmation hearing: June 28 (see the video of his remarks to the press at C-SPAN, and his official statement here).  Senator Jeff Sessions, the committee’s ranking member, had recommended that the hearing start after July 4.  The BLT, Bloomberg, Jurist, and the New York Times’ Caucus blog all have coverage of the statements.   Zach Lowe at the Am Law Daily reports that the White House has turned to Skadden Arps to prepare Kagan for her hearing.

Journalists and commentators are closely scouring the documents that were released Tuesday with Kagan’s completed Senate Judiciary Committee questionnaire.

At the New York Times, Peter Baker and Sheryl Gay Stolberg examine – among other documents – Kagan’s master’s thesis from Oxford, in which she criticizes several Warren Court rulings as poorly reasoned.  Kagan explained that although it is “‘not necessarily wrong or invalid’ for judges to ‘try to mold and steer the law’ to achieve social ends, such rulings must be rooted in legal principles to be accepted by society and endure.”  (The thesis can be read here.)  The Wall Street Journal‘s Washington Wire blog describes Kagan’s undergraduate thesis as a work of great “self-confidence” in which she boldly critiques works by prominent historians.  Andrew Romano and McKay Coppins at Newsweek analyze the articles Kagan wrote as an undergraduate for the Daily Princetonian for clues about her adult views, while the Associated Press focuses on Kagan’s more recent public remarks, especially her speeches.

Nathan Koppel at the Wall Street Journal has a story on another document that was part of the “trove” released on Tuesday:  Kagan’s notes from a speech in which she characterized the Court’s 2000 decision in Bush v. Gore as “an example of her view that judges’ reasoning ‘necessarily + inevitably’ involves ‘political + policy questions.'”  The WSJ Law Blog has a slightly longer excerpt from the notes, and the Huffington Post reproduces the handwritten text.

Based on Kagan’s responses to questions about her finances, the National Law Journal’s David Ingram concludes that Kagan had a “strong year financially in 2009.”

Also from the Senate documents, Bloomberg notes that Kagan’s talks with the White House about a possible vacancy on the Court and nomination preceded Justice Stevens’ retirement announcement on April 9 by about a month.

As reported by the Los Angeles Times and the Ninth Justice, top senators on both sides of the aisle are calling for the release of even more memos that Kagan wrote while working in the White House in the 1990s.

In light of Kagan’s recommendation to then-President Bill Clinton that he support a bill that would ban late-term abortions, the House’s Pro-Choice Caucus expresses doubts, relayed at the Ninth Justice, whether Kagan is “unwavering” in her support of abortion rights.  In an opinion piece for the Christian Science Monitor, Nathan Tucker anticipates that recently enacted restrictions on abortions in Nebraska will be discussed in Kagan’s hearing.

Nomination coverage, briefly:

  • At the Center for Constitutional Accountability’s Text & History blog, Doug Kendall discusses Kagan’s handling of the McDonald v. Chicago gun rights case.
  • A New York Times article earlier this week argues that the President should have nominated Diane Wood, rather than Kagan, because she is a mother and therefore could serve as a role model for young women contemplating a balance between career and family.  Giovanna Shay, on the other hand, argues at Concurring Opinions that role models alone will not help; for that, girls need a deeper structural change in the organization of work and life and in our discussion of motherhood.
  • At Slate, Dahlia Lithwick characterizes the public scrutiny of Kagan’s personal life — particularly her marital status — as more a dialogue about Americans’ own insecurities than a useful probing of the nominee’s record.
  • The Ninth Justice reports that forty-six percent of Americans do not know enough about Kagan to opine whether she should be confirmed, according to a new poll with the Pew Research Center.
  • Boston Globe columnist Jeff Jacoby applauds Kagan’s 1995 law review article criticizing the Supreme Court nomination process and encouraging Kagan to follow her own advice by giving “substantive answers to relevant questions.”

Non-nomination news:

In a Washington Post op-ed, George Will reprimands the Ninth Circuit, in no uncertain terms, for its decision in Arizona Christian School Tuition Organization v. Winn, a challenge to a tax credit available to taxpayers who donate to nonprofits that provide scholarships to private schools, including religious ones.  Will urges the Supreme Court to summarily reverse the decision below, which deems the tax program unconstitutional.  Eugene Volokh links to Will’s column at the Volokh Conspiracy and agrees with him that “the program should have been upheld.”

At Crime and Consequences, Steve Erickson hypothesizes that what the opinions in Graham v. Florida and United States v. Comstock “really might be saying is that lifetime confinement is permissible as long as it takes place in the civil sphere under the guise of rehabilitation and mental health.”  At Sentencing Law and Policy, Douglas Berman makes an originalist argument against life imprisonment without parole, contrary to the reasoning in Justice Thomas’ dissent in Graham.  In another post, Berman speculates – based on the wording of the Chief Justice’s concurrence in Graham – that Justice Alito may have originally joined the concurrence (before deciding to dissent instead).  Andrew Cohen at Politics Daily, criticizing the “tough-on-crime” movement for advocating harsher criminal penalties over the last forty years, congratulates Justice Kennedy, a fifth vote for the decision, for pushing back against it.


  • At, Michael Dorf interprets the Comstock decision as signaling that the Court would uphold the healthcare mandate as constitutional, because eight Justices (the majority, plus Justice Scalia) revealed a willingness to extend federal power to areas that are not independently regulable.  In light of the ruling, Mary Carmichael at Newsweek discusses the work of political scientists who contend that communities, rather than the federal government, are best equipped to punish sex offenders — and perhaps to rehabilitate them instead.
  • Sidney Shapiro at ACSblog flags a report recently released by the Center for Progressive Reform on “troubling aspects of plausibility pleading” after the Court’s recent decisions in Ashcroft v. Iqbal and Twombly v. Bell Atlantic.
  • At the BLT, Tony Mauro offers notes from a recent panel discussion held by C-SPAN to celebrate the launch of their new book, The Supreme Court.  The speakers included Justice Breyer, SCOTUSblog’s own Lyle Denniston, Maureen Mahoney, and Joan Biskupic.
  • At Reuters, Gregg Easterbrook argues in favor of ten-year term limits for the Justices.
  • At the Jury Expert, Ryan Malphurs writes about his theory on oral arguments and their effect on judicial decision making.
  • Former Judge Michael McConnell grants an interview to Timothy Dalrymple of Patheos on Christian Legal Society v. Martinez, the religious student group funding case in which he represents the petitioner.