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Wednesday round-up

Despite the flurry of opinions and orders at the Court on Monday, attention has quickly returned to Elena Kagan’s nomination. Sheryl Gay Stolberg of the New York Times has a story on Kagan’s academic career at Harvard Law School, her selection as the dean of that school, and her aspirations for the Harvard presidency. In particular, Stolberg characterizes Kagan’s interactions with former Harvard president Lawrence Summers as “reveal[ing] a woman of intense ambition and deft political skills.” Looking to an earlier period in Kagan’s career, the Associated Press (via the Washington Post) examines documents from her year as a law clerk to Justice Thurgood Marshall, concluding that Kagan “was frequently assessing the politics of the [Court]” and “repeatedly expressed her concern that a conservative Supreme Court was looking for ways to cut back on the rights of women, criminal defendants and prisoners.” As the story also notes, Kagan would be only the sixth Justice to have clerked at the Supreme Court and is the first to be nominated at a time when her Justice’s papers are publicly available.

In the Washington Post, Robert Barnes compares Kagan’s limited “paper trail” to that of previous nominees; he characterizes her record as “at times contradictory, or at least ambiguous.” In an op-ed for the New York Times, John Yoo argues that although Kagan has taken positions on executive power as a lawyer, “these positions provide little hint about what a Justice Kagan would think about executive authority sitting on the bench in time of war.”

USA Today’s The Oval blog notes that the White House, Republicans, and interest groups are beginning to “step up” their efforts as the confirmation hearings near. Senator Jeff Sessions, the lead Republican on the Judiciary Committee, has suggested he might seek a delay of the hearings to allow a review of documents from Kagan’s days in the Clinton Administration. The Associated Press (via the Washington Post) reports that Senator Patrick Leahy, who will chair Kagan’s confirmation hearings, is pushing back on what he calls “overheated rhetoric” from Republicans about the timeline for the hearings and the nominee herself.

Both the Blog of the Legal Times and the Wall Street Journal’s Washington Wire blog report on a White House conference call that was intended to highlight Kagan’s commitment to public service. Instead, they note, “a former Harvard Federalist Society president, now a Republican political consultant, . . . captured most of the spotlight” (the BLT) and described Kagan as a “qualified nominee.”

Finally, the L.A. Times’s Opinion L.A. blog reflects on the preoccupation with Kagan’s grades in law school. Arguing that “the law . . . pays absurdly extravagant attention to youthful achievement,” author Michael McGough concludes that “[i]n all the talk about diversity on the court, one group is overlooked: students  who received mediocre grades throughout law school but nevertheless developed into first-rate lawyers or judges. It’s time for a ‘late bloomer’ seat.”

In news unrelated to the nomination, coverage of Monday’s seven decisions and five cert. grants has not petered out. In her report on American Needle Inc. v. NFL for NPR, Nina Totenberg described the case as “a Hail Mary pass by the NFL . . . with other sports leagues cheering on the football league. But the NFL was sacked by the Supreme Court and its 90-year-old senior justice, John Paul Stevens.”  For other reactions to American Needle, the Wall Street Journal has the reaction of sports journalist Allen Barra, ACSblog has the reaction of sports law professor Michael McCann, and the Legal Pulse blog has the reaction of antitrust attorney Steven Bradbury. The New York Times editorial board cheered the Court’s decision in Lewis v. City of Chicago; the ruling, it explains, “could give a chance at relief to minority groups, women, the elderly[,] the disabled and others claiming to be victims of a discriminatory employment practice long after the practice went into effect.” The New York Law Journal analyzes the Court’s decision in United States v. Marcus, which rejected the plain error standard used by the Second Circuit below.

The L.A. Times and both cover the denial of cert. in Ileto v. Glock, a challenge to the constitutionality of 2005’s Protection of Lawful Commerce in Arms Act, which bars claims against manufacturers and distributors of firearms for crimes committed with their weapons. The L.A. Times reports on another case in which review was denied on Monday, in which a 70-year-old Los Angeles attorney challenged his indefinite solitary confinement for contempt of court. Finally, Daniel Fisher of Forbes reacts to Monday’s action at the Court with a simple observation: “Where’s Bilski?”


  • The WSJ Law Blog reports on “a rare foray by Washington into the highly sensitive litigation” against the Vatican over sex abuse claims. In an amicus brief filed at the Court’s invitation, “the solicitor general’s office argued . . . that the Ninth Circuit misapplied the Foreign Sovereign Immunities Act, a 1976 federal law governing when U.S. courts can hear cases against other countries.”
  • In an opinion piece for the National Law Journal, George Priest and William Levi argue that Justice Stevens “deserves principal credit for initiating the vast change in the Court’s understanding of antitrust law since the late 1970s, as the Court came to embrace the economic antitrust analysis of the Chicago School, perhaps his most lasting contribution.”
  • GameCulture has an interview with the president of the Electronic Consumers Association (ECA), which is filing an amicus brief in Schwarzenegger v. Electronic Merchants Association, the First Amendment challenge to a California law restricting the sale of violent video games. The ECA plans to attach a consumer petition to its brief.
  • Retired Justice Sandra Day O’Connor will appear on Thursday’s episode of “Good Morning America,” according to ABC News.
  • At PrawfsBlawg, Steve Vladeck previews his testimony this morning before the House Subcommittee on Crime, Terrorism, and Homeland Security. The hearing will assess the implications of last month’s decision in United States v. Stevens, in which the Court struck down a federal statute that banned the sale of depictions of animal cruelty.
  • At Concurring Opinions, Brandon Bartels crunches the numbers on Justice Kennedy’s voting behavior to analyze his role as the swing vote and predict whether Kagan might have any impact on his, and the Court’s, decisionmaking.
  • Eugene Volokh continues his “short essay” on Snyder v. Phelps, the funeral protesting case to be argued next Term, at the Volokh Conspiracy. (Part I of the essay is linked in yesterday’s round-up.)
  • On her Court Beat blog, Joan Biskupic recalls a conversation with Chief Justice Rehnquist about the Watergate scandal, which occurred shortly after he left the Justice Department for the Supreme Court.
  • C-SPAN offers an online video of Justice Kennedy’s speech at the Forum Club of the Palm Beaches on Saturday. The speech touched on litmus tests, overcrowded prisons, and the rule of law in Third World countries.
  • At Balkinization, Mark Tushnet gives three “inside baseball” observations on Graham v. Florida, the juvenile life-without-parole case decided last week.
  • And finally, on his blog, Robert Ambrogi features an iPhone app that “turns your iPhone into a portable repository of Supreme Court jurisprudence, with details about its decisions and its justices and even the audio of oral arguments.”