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Wednesday round-up

Monday’s opinions, particularly those handed down in Graham v. Florida and United States v. Comstock, have generated the first substantial case-related media coverage since President Obama announced his nomination of Elena Kagan last week. The editorial board of the Los Angeles Times argues that, although the Court correctly condemned life-without-parole sentences for juveniles convicted of crimes other than murder, it should go even further and ban such sentences for minors convicted of “the worst crime possible”:  murder.  Likewise, the Christian Science Monitor’s editorial board applauds the Court’s Graham decision, and the editorial board of the Miami Herald concurs.  CNN profiles Mary Graham, the mother of the petitioner in the case, and at NPR, Allison Keyes talks to former juvenile offender R. Dwayne Betts – now an award-winning author – about the ruling.

Rick Hills discusses Monday’s Graham and Comstock rulings in the context of his own views on federalism at PrawfsBlawg; he concludes that “we get nationalized policy where we do not need it and incoherenet judicial efforts to defer to states . . . where we need more nationalism.”  In a second post at PrawfsBlawg, Marc DeGirolami examines Justice White’s famous proclamation that “death is different,” responding to claims that the Graham decision represents an end to that theory, while in a third post, Ronald Wright compares the two cases.

Sentencing Law and Policy highlights a debate – hosted by the New York Times – on Monday’s decision in Graham.  The debate features opinions from four experts on sentencing and criminal justice.  A second Sentencing Law and Policy post links to an SSRN abstract that, according to SL&P’s Doug Berman, appears interesting in light of the Graham decision.  Also at Sentencing Law and Policy,  Berman examines the Chief Justice’s concurrence in Graham, while at the Volokh Conspiracy, Eugene Volokh discusses Justice Thomas’ dissent.

At Slate, Dahlia Lithwick discusses the implications of the Comstock decision, suggesting that the Court’s endorsement of indefinite detention of individuals showing “signs of future dangerousness” may have implications for terror suspects.

Continuing the coverage of the Kagan nomination, the BLT has coverage of Kagan’s responses to the Senate’s questionnaire, which she turned over to the Judiciary Committee yesterday along with nearly 200 pages of material.  The Washington Post’s Robert Barnes and Amy Goldstein also report on the release, as do the Los Angeles Times, the Wall Street Journal, the New York Times, the Chicago Sun Times, and FoxNews.  At Politico, Josh Gerstein discusses the thesis that Kagan wrote while a student at Oxford.

As the Associated Press (via the New York Times) reports, Senate Republicans have reiterated that they do not expect to filibuster Kagan’s confirmation, although they do plan to press her on a number of issues, particularly her opposition to the military’s “Don’t Ask, Don’t Tell” policy, during her confirmation hearings.

In a post at the Ninth Justice, Dan Friedman reports that the Senate Judiciary Committee is moving towards scheduling Kagan’s confirmation hearing.  Senate Judiciary Chairman Patrick Leahy has indicated that he hopes to schedule the hearing for the final weeks of June, while ranking member Jeff Sessions has said he would prefer a hearing after the Senate’s Independence Day recess.

At Balkinization, Jack Balkin reiterates that attempts to uncover a judicial nominee’s “paper trail” often represent efforts to expose information that can be used against the nominee, as illustrated by the “mad rush” in the last few days to locate Elena Kagan’s undergraduate thesis.

At the BLT, Tony Mauro notes Monday’s announcement that Elena Kagan has stepped aside from her position as Solicitor General.  (Neal Katyal, her principal deputy, will now serve as Acting Solicitor General in her stead.)  A DOJ official has confirmed, however, that it is still appropriate to refer to her as “General Kagan,” Mauro reports.


  • The Ninth Justice has coverage of a panel held yesterday at Georgetown’s Supreme Court Institute, at which experts including Pamela Harris, Richard Lazarus, and Sri Srinivasan discussed the upcoming confirmation hearings.
  • The play Thurgood, which stars Laurence Fishburne as the late Justice Thurgood Marshall (for whom SCOTUS nominee Kagan clerked during the 1987 Term), will be performed in Washington, D.C. at the Kennedy Center from June 1-20, Tony Mauro reports at the BLT.