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Thursday round-up

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.

In a Slate essay on the commencement speech delivered at Harvard by retired Justice David Souter, Dahlia Lithwick laments that Justices and nominees to the Court seldom acknowledge that “judging is complex,” demanding rare intelligence and judgment, until after they finish the confirmation process – or even until after they retire.  At Forbes, law professor Richard Epstein defends originalism against Souter’s tacit critique, arguing that Souter’s alternative method of constitutional interpretation indefensibly portrays Plessy v. Ferguson as rightly decided for its time.  Using Souter’s point that judging is complicated, Adam Cohen at Time argues that the charges of “judicial activism” that are likely to be lodged during Elena Kagan’s confirmation should be dismissed as “meaningless.”

In a forty-five-minute interview on C-SPAN’s Washington Journal, Julie Hirschfield Davis of the Associated Press discusses the Clinton Library’s release of documents from Kagan’s time in the White House, calling Kagan a “pragmatist” who shared President Clinton’s “agenda” but tried to “steer a middle course.” Among the documents still to be released are “more potentially controversial documents that are actually written by her.”  In an AP story (via the L.A. Times), Davis reports that the Library is set to release the final 30,000 pages of Kagan’s papers today, with 80,000 pages of emails to come later.

A Boston Globe feature suggests that, even though Kagan’s confirmation “seems increasingly assured,” confirmations are for interest groups on the right and left “a high-profile opportunity to raise morale – and money – among political supporters, all in the name of supporting or opposing the nominee.”   Davis echoes this theory in another story for the AP.

In a long feature on Kagan at the Washington Post, Ann Gerhart and Philip Rucker describe what they regard as Kagan’s “special brilliance”:  her ability to “demonstrate her respect and admiration for those with whom she may not agree, fearlessly take them on and then skillfully, and with a touch of flattery and humor, find the occasional compromise between right and left.”  However, the Post reporters also emphasize that Kagan has lived “her entire life along Pennsylvania Avenue or near Harvard Square and Hyde Park,” and that her close friendships have been formed mostly among “elite lawyers of a certain set or Democratic operatives with staying power.”

The editorial board of the Washington Times criticizes Kagan as a “feverish proponent of gun control” during her time in the Clinton White House.  While agreeing that Kagan is not the ideal nominee for the right, Marcus Cole at Pileus encourages libertarians and conservatives to breath a collective “sigh of relief” because she has “a measure of basic decency and a genuine interest in intellectual exchange.”

ACSblog has a brief summary of Tuesday’s panel on the Kagan nomination.  Among other things, the blog notes Walter Dellinger’s remark that President Obama should “embrace the ‘e’ word [’empathy’] fearlessly” to describe a quality he wants in a nominee.  You can see the entire video of the event here.

Ashby Jones at the WSJ Law Blog rounds up news coverage of the Court’s order in the Arizona campaign-financing case, as did SCOTUSblog’s round-up yesterday.  To Steven Schwinn at the Constitutional Law Prof Blog, the order “seems to suggest Supreme Court review next term, but probably not in time for November’s elections.”  At Tapped, Paul Waldman brands the order as a “radical move.”

The American Interest online has three essays on Citizens United: Mark Schmitt discusses what he sees as flaws in the basic design and approach of the Bipartisan Campaign Finance Reform Act (partly struck down by the Court); Rick Hasen explains the history of the Court’s rulings on campaign finance and exactly what the Court held in Citizens; and Michael Mablin argues that, in response to the ruling, political actors should focus on increasing small donations.


  • David Savage of the L.A. Times reports on Justice Sotomayor’s voting pattern this Term, describing her “a reliable liberal vote” but discerning “few signs of ’empathy'” in her work so far.
  • After unions spending freely under Citizens United were unable to defeat moderate Democrat Blanche Lincoln of Arkansas, Ann Althouse, at her blog, suggests that ads backfire when viewers see their sponsors and think “They’re for him? Then I’m against him.”