Monday round-up

By Adam Chandler
on Jun 28, 2010 at 9:32 am

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.

Because of the convergence of several major Court-related events, the media’s attention is fixed on the Court to an uncommon degree. Many journalists and commentators spent the weekend previewing Elena Kagan’s confirmation hearings, which begin today, as well as the final day of the Term (also today), which is expected to bring decisions in four high-profile cases and Justice Stevens’ last appearance on the bench. Amidst the eager anticipation for the events of this week, the Supreme Court released sobering news: Justice Ginsburg’s husband Marty passed away yesterday. This round-up will begin with coverage of Marty Ginsburg’s death, followed by the weekend’s reporting on the Kagan nomination, the four outstanding cases, and finally, several recently decided cases.

Martin David Ginsburg

Yesterday afternoon SCOTUSblog posted the statement from the Supreme Court announcing the passing of Justice Ginsburg’s husband: “Martin David Ginsburg, husband of Supreme Court Justice Ruth Bader Ginsburg, died today, June 27, 2010, at his home in Washington, D.C., due to complications of metastatic cancer.” T. Rees Shapiro writes in the Washington Post that Ginsburg “was considered one of the nation’s preeminent tax-law experts for his mastery of the Internal Revenue Code’s intricacies.” Bill Mears of CNN, Gardiner Harris of the New York Times, David Savage of the L.A. Times, and the Associated Press (via CBSNews.com) also have obituaries for Ginsburg.

Jess Bravin notes in the Wall Street Journal that “[i]t [i]s unclear whether Justice Ginsburg w[ill] attend the court’s session Monday.”

The Kagan Nomination

The Hill has an interview with SCOTUSblog’s Tom Goldstein previewing the confirmation hearings. Tom will also be online with the Washington Post at 3 p.m. EST today to discuss the hearings. A post at Constitutional Law Prof Blog collects materials from the Senate Judiciary Committee, including a list of witnesses for the hearings, and the Associated Press (via CBSNews.com) offers a primer on the members of the Judiciary Committee (“[a] cast of graybeards, rising stars and a lame duck once in charge”). NPR and ABC News have their own primers for the hearings.

The New York Times editorial board writes that Kagan “arrives for her Senate hearings Monday as one of the most enigmatic nominees for the Supreme Court in recent memory.” Nancy Benac of the Associated Press (via the Washington Post) attempts to shed some light on the enigma with a lengthy profile of Kagan’s career; she writes, “Kagan’s life has been her work[, and] Kagan lived her life carefully and cleanly.” Three L.A. Times reporters also offer an in-depth look at Kagan’s upbringing and early career.

CNN reports that the Senators on the Judiciary Committee are gearing up for a “contentious” set of hearings. Sheryl Gay Stolberg of the New York Times suggests that the Senators may focus the hearings as much on President Obama and Chief Justice Roberts as on Kagan. The Wall Street Journal’s Jess Bravin agrees, writing that the hearings are “less about wounding Elena Kagan, who is likely to survive intact, and more about Democrats and Republicans scoring points against each other with November in mind.” The Boston Globe’s Mark Arsenault also notes that the result for Kagan is not in doubt and that the hearings are “more about positioning for the midterm elections.”

In a column for the Washington Post, E.J. Dionne previews the arguments Democrats will make during the hearings, arguments that he says “will mark a sea change in the way liberals argue about the judiciary.” Another bit of news on the liberal side: the Washington Post’s Amy Goldstein reports that Kagan’s record on racial issues “is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.” Dan Freedman of Hearst Newspapers (via the San Francisco Chronicle) also reports on the concerns held by civil liberties groups over Kagan’s stance on detainee issues. (Thanks to Howard Bashman for the tip.)

On the Republican side, a filibuster has not been taken off the table, said Senator Jeff Sessions on CBS’s “Face the Nation” (via the Huffington Post and the Wall Street Journal’s Washington Wire blog). Senator John Cornyn has an op-ed in USA Today entitled “I smell a judicial activist.” The Wall Street Journal’s editorial board criticizes Kagan’s “view that Congress has virtually no limits on its regulatory power under the Constitution’s Commerce Clause.” And the Associated Press (via CBSNews.com) reports that GOP Senators are questioning whether Kagan will be an impartial judge, a “line of attack [that] is weak and would cast doubt on all of the sitting justices,” according to Brandon Bartels at Concurring Opinions. Indeed, NPR’s Nina Totenberg reports that for the last month “Republicans have been hurling themselves at the Kagan appointment, with about as much effect as hurling themselves at a brick wall,” although “the principal line of Republican attack this week will be the assertion that Kagan as dean was anti-military.” A Washington Post report similarly observes that “Republicans have struggled to find a compelling line of attack to take against the Supreme Court nominee.” And the Volokh Conspiracy notes that Kagan has picked up another high-profile conservative supporter, professor and former judge Michael McConnell. McConnell’s endorsement deepens the divisions among conservatives on the merits of the Kagan nomination, as described by Alan Blinder of Hearst Newspapers. (Thanks again to Howard Bashman for the tip.)

Kagan’s critics are scrutinizing her connections to two prominent judges, Abner Mikva and Aharon Barak. The New York Times reports that conservatives see Mikva “as a key to understanding what they describe as Ms. Kagan’s liberal agenda.” Politico and the New York Times have coverage of the criticism being leveled at Kagan for her praise of Barak – criticism that Aaron Zelinsky describes as “baseless” and “unsound” in the Huffington Post. (“Our Aharon Barak was John Marshall,” Zelinsky writes.)

Many commentators are suggesting questions for the Judiciary Committee to ask Kagan. Trying to prevent the hearings from becoming what the USA Today editorial board calls “another round of small-minded political theatrics,” George Will of the Washington Post devotes two columns to his suggested questions for Kagan. (Example: “In 1963, President John Kennedy said Congress should ‘make a commitment . . . to the proposition that race has no place in American life or law.’ Was he right?”) At Sentencing Law and Policy, Doug Berman suggests six questions on criminal law “because Elena Kagan’s record is so spartan on crime and punishment matters.” (Example: “What are your current views of the pros and cons of the modern exclusionary rule?”) The editorial board of the L.A. Times offers five areas of inquiry on which it thinks the Senators should focus. Damon Root of Reason magazine says “the senators should start by asking her about her predecessor’s [Justice Stevens’s] repeated hostility to the judicial protection of economic rights.” The L.A. Times’ Christopher Knight encourages the Senators to ask about the Court’s recent decision to close the front doors of the Court to entering visitors. Two law professors have an op-ed in the Washington Post about what should not be asked; they argue that “Senators should not ask [Kagan] to articulate her positions on legal issues in advance of her deciding cases[, and i]f they ask, she should decline to do so.”

Briefly (Kagan Coverage)

• Politico’s Josh Gerstein reports on remarks Kagan made at a 1993 conference on pornography and hate crimes.
• Warren Richey of the Christian Science Monitor has a lengthy article on Kagan’s actions during the military recruiting controversy at Harvard Law School.
• The Washington Post has a story on the Judiciary Committee staffers preparing Senators for the confirmation hearings.
• In the New York Times, Adam Liptak reports on a study showing that confirmation hearings are in fact “useful,” in that they “often address real substance, illuminate the spirit of their times and change with shifts in partisan alignments and the demographic characteristics of nominees.” The study also “finds that female and minority nominees are questioned more closely than white male ones.”
• The Associated Press (via the Washington Post) compiles Kagan’s “scorecard” as Solicitor General. She is currently three-for-four at the Court.
• C-SPAN.org features a forty-minute interview with the Washington Times’ Quin Hillyer about the Kagan hearings.
• Yahoo! News compiles a collection of key moments from past confirmation hearings.

The Four Outstanding Cases

At SCOTUSblog, Tom Goldstein predicts the authors and outcomes of the four remaining cases of the Term: Bilski v. Kappos, on “business method” patents, Free Enterprise Fund v. Public Company Accounting Oversight Board, the Sarbanes-Oxley case, McDonald v. City of Chicago, the Second Amendment case, and Christian Legal Society v. Martinez, on religious student groups at public schools. The WSJ Law Blog also covers the basics on all four cases, which are expected to make up what it calls “Big Monday.”

Josh Blackman outlines his predictions and the likely scenarios for the McDonald decision. The Chicago Tribune reports that, according to the mayor of Chicago, “[t]he Chicago City Council could consider new gun control measures as soon as Wednesday if the U.S. Supreme Court overturns the city’s long-standing handgun ban Monday.” The Chicago Sun-Times also has coverage of the city’s response plans.

Recently Decided Cases

For the ninth year, Slate is running its “Breakfast Table” discussion of the Court’s end-of-Term decisions. This year, former Solicitor General Paul Clement joins regulars Walter Dellinger and Dahlia Lithwick at the table.

The Court’s decision in Morrison v. National Australia Bank has already spawned a rather extensive literature of blog posts, with contributions from John Elwood (the Volokh Conspiracy), Margaret Sachs (the Conglomerate and Opinio Juris), Austen Parrish (Opinio Juris), and William Dodge (Opinio Juris).

The Washington Post editorial board applauded the Court’s decisions in the “honest-services” cases (Skilling v. United States, Black v. United States, and Weyhrauch v. United States), agreeing that “[c]riminal laws should be clear and precise so that the average person understands what actions would trigger a violation.” In an op-ed for the Wall Street Journal, Seth Lipsky describes a visit to Conrad Black in prison and the “heroic” nature of his appeal. The New York Times’ Chicago News Cooperative reports that the rulings “could have far-ranging political consequences in Chicago’s wards.” ACSblog has a summary of the Skilling case and the Court’s ruling.

In the Washington Post, Bob Barnes revisits the Court’s decision in Doe v. Reed, describing the eight-to-one vote as “deceptively lopsided” and saying that the decision “could be more of a beginning than an end.” The New York Times editorial board praises the decision.

At ACSblog, Alan Morrison describes the Court’s actions in Rent-A-Center v. Jackson as “a brakeless train careening down a mountain” in its arbitration jurisprudence. The New York Times editorial board calls the decision an “absurdity” making “the arbitration process even more onerous.”

ACSblog also has a piece by Ed Roggenkamp interpreting the Court’s opinions in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection through the lens of “judicial activism.”

Briefly:

• Noah Feldman has an article in the New York Times Magazine calling for a new progressive constitutional vision.
• The cover story of the Christian Science Monitor’s weekly magazine is about the extent to which the Supreme Court’s diversity does and should reflect the country’s. (Example fact: 41 of 111 Supreme Court Justices had fathers who held public office.)
• NPR’s Nina Totenberg has a report on gender, the Supreme Court, and the legal profession.
• Rick Pildes (Balkinization) and Rick Hasen (Election Law Blog) discuss the likelihood of the Court summarily affirming the D.C. Circuit in the major campaign-finance case Republican National Committee v. FEC, which is pending before the Court now.
• The Washington Post’s Reliable Source blog explains why Justice Sotomayor does not autograph baseballs.
• Richard Brust has an article in the ABA Journal examining Justice Kennedy as a “super median” Justice. (Thanks once more to Howard Bashman for the tip.)