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Tuesday 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.

The Supreme Court beat was lightly trodden this weekend.  The Chicago Tribune reports on what some regard as Elena Kagan’s biggest professional setback—her failure to be reappointed as a professor at the University of Chicago after her service in the Clinton White House.  Christi Parsons argues that “the incident illustrates something about Kagan and the law: She is far less a theorist than she is a practitioner and problem solver.” Perhaps exhausted from the week of local graduation ceremonies, the Boston Globe editorial board paints Kagan’s academic transcript uncharitably: as “a testament to one’s skills and ambitions, but not an actual accomplishment.” 

The editorial board of the Dallas Morning News suggests several questions for this month’s confirmation hearings.  David Savage of the Los Angeles Times recounts the confirmation battles of Nixon nominee G. Harrold Carswell, Harriet Miers, and Justice Clarence Thomas to emphasize the importance of rigorous vetting.  He notes that with the exception of the Miers nomination, recent White Houses have become far more adept at pre-screening their candidates.

The Solicitor General’s office has come in for some recent criticism.  At the Volokh Conspiracy, Stewart Baker and Jonathan Adler weigh in on the decision to recommend certiorari in U.S. Chamber of Commerce v. Candelaria, in which the government has argued that an Arizona law punishing the employers of unauthorized aliens is preempted by federal law.  Baker offers a strident critique of the brief; Adler suggests that the administration’s position in this case may be in tension with anti-preemption arguments elsewhere.  And in Slate, Christopher Hitchens criticizes the Obama Administration’s defense of the Holy See as a foreign sovereign entitled to immunity under the Foreign Sovereign Immunities Act – a position that the Administration recently renewed in a brief signed by Acting Solicitor General Neal Katyal.  [Disclosure: As an intern for the Department of Justice, I was briefly involved in a related case.]

On Memorial Day, the Washington Post and ABC News both reported on Snyder v. Phelps, in which the Court will hear argument next Term regarding whether the First Amendment protects anti-gay protesters at private military funerals. 

At Balkinization, Steve Vladeck writes that the D.C. Circuit’s recent decision in al Maqaleh v. Gates—holding that prisoners at Bagram Air Base in Afghanistan have no constitutional right to habeas corpus—illustrates the ambiguities inherent in Justice Kennedy’s Boumediene decision.  The New York Times editorial board criticizes the decision as an imprudent one that overturned a narrow holding below.

Several senators are considering legislation that would overturn the 1:1 ratio of punitive to compensatory damages established in Exxon Shipping Co. v. Baker.  As Marcia Coyle reports in the National Law Journal, the decision in that case rested on federal common law, which Congress is always free to amend, but the Court also suggested that due process concerns may have played some role.

Citizens United has been hailed as a victory for corporate interests, but now corporations must decide what to do with it.  Carol Leonnig writes in the Washington Post that “corporate CEOs and trade groups” are trying to get their “companies involved in this political election season without leaving tracks.” 

The Associated Press (via the Boston Globe) reports on Basham v. United States, a capital case in which the jury foreman made many calls to news organizations and two fellow jurors during the trial.  The defendant is asking the Court to overturn the guilty verdict; as Solicitor General, Elena Kagan signed a brief recommending against certiorari.

Finally, the Syracuse Post-Standard has an interview (including video) with Dr. Juan Sotomayor, a local pediatrician and brother of Justice Sonia Sotomayor.  Dr. Sotomayor recalls running out to Sears to buy new suits for his children when his sister was nominated to the Court.