Wednesday round-up

By Adam Chandler
on Jun 23, 2010 at 9:39 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.

As next week’s confirmation hearings draw closer, the drumbeat of developments in nomination matters has quickened. Yesterday eight former Solicitors General released a letter of support for the Kagan nomination, in which they noted that “[t]he job of Solicitor General provides an opportunity to grapple with almost the full gamut of issues that come before the Supreme Court and requires an understanding of the Court’s approach to numerous issues.” The signatories to the letter—which was addressed to Patrick Leahy, the Chairman of the Senate Judiciary Committee, and Jeff Sessions, the committee’s ranking member—included every living former Solicitor General except for Robert Bork. The New York Times’s The Caucus blog, Bloomberg, and the WSJ Law Blog all have coverage of the endorsement. The Associated Press (via the L.A. Times) reports that a group of twenty-nine former Supreme Court clerks from the October Term 1987, when Kagan clerked on the Court, are also supporting her nomination. Those clerks include Miguel Estrada and Ron Klain, who is now chief of staff to Vice President Biden.

Meanwhile, after raising the prospect of a Republican boycott of the hearings with Politico on Monday night, Senator Jeff Sessions, the ranking Republican on the Judiciary Committee, has backtracked, saying that the GOP “fully expects” to attend the hearings. Politico reports that Sessions is seeking 1,600 documents from Kagan’s time in the Clinton administration that were withheld because they contained “personal” matters. But he says that a boycott would be appropriate only if “we had a really serious situation” in which important documents were being withheld. Vanity Fair’s VF Daily blog also takes note of Sessions’s statements.

Washington, DC’s FOX5 has an interview with CQ Politics’s Seth Stern on the criticism that Kagan is receiving from both liberal and conservative groups on her views on abortion.  And Slate’s Dahlia Lithwick previews Kagan’s confirmation hearings, observing that “[Kagan] isn’t averse to tough scrutiny. She’s simply ensured that her own background defies it. … Kagan has made herself into the perfect nominee.” Lithwick concludes with an observation that “the journey to the Supreme Court has become the mirror image of a trip to Oz. You need to lose the heart, the brain, and the courage before anyone lets you in the door.” Writing for the New Republic, Justin Driver approaches the hearings from a different angle, specifically whether they can change the public perception of living constitutionalism—“the stakes,” he says, “could hardly be higher.”

The Associated Press (via NPR) also has a story on the mock hearings, or “murder boards,” that serve as a rehearsal for Kagan before the curtains go up on her hearings next week. The story reports that “[t]he process is shrouded in secrecy; the White House refuses to describe it.”

In non-nominations coverage, the Court’s recent opinions are still receiving attention. At the Volokh Conspiracy, Eugene Volokh discusses the Court’s opinion in Holder v. Humanitarian Law Project, the Term’s only war-on-terror case: he describes himself as troubled by the question of whether “speech that’s independent of [foreign terrorist] organizations remains protected even if it ends up helping them.” Writing for the Huffington Post, Kay Guinane contends that “[t]he chilling impact this decision will have on efforts to forge peace and protect human rights will mean more suffering for innocent bystanders in political struggles and lost opportunities for peace.” PrawfsBlawg’s Rick Hills examines the “material support” statute the Court upheld in the case, finding that it provides an “extraordinary grant of prosecutorial discretion.”

Also at PrawfsBlawg, Adam Winkler highlights Justice Scalia’s “acerbic comments” in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the judicial takings case. (Disclosure: my law school clinic represented some of the respondents in the case.) Eduardo Penalver also offers his analysis of that decision (“striking for its reasonableness”) at PrawfsBlawg.

On the L.A. Times’s Opinion L.A. blog, Michael McGough emphasizes the narrowness of the Court’s ruling in the text-messaging case City of Ontario v. Quon, while at Balkinization, Frank Pasquale reacts to the Court’s role in workplace privacy with a shrug: “whatever the drift of thought among swing justices, economic imperatives and cultural shifts will mean a lot less privacy in the workplace of the future.” (Disclosure: my law school clinic represented amici supporting the respondent in the case.) Also at Balkinization, David Gans “explains why Rent-A-Center[ v. Jackson] matters” as “another ruling in a long campaign by corporations to supplant judicial review with arbitration.” Finally, on his blog for the Atlantic, Barry Estabrook writes that although both sides of Monsanto Company v. Geertson Seed Farms were “ecstatic” about the Court’s ruling, “[o]n balance, victory goes to those who oppose [genetically modified] crops.”

Briefly:

• Michael Gerson has an op-ed in the Washington Post criticizing Senator Al Franken’s speech at last weekend’s American Constitution Society conference and defending the Court’s conservative justices. Franken mocked the judge-as-umpire analogy, but Gerson supports it because a “judge who does not think himself an umpire may end up an autocrat.”
• The Hill has a story on abortion protesters who appear regularly at the Supreme Court. The protesters are part of the “Christian, anti-abortion-rights Bound 4 Life coalition, [which] has been sending small contingents to the Supreme Court for roughly hourlong silent prayers Monday through Saturday since the 2004 presidential election,” according to its executive director.
• C-SPAN offers video of a panel on Congress and the Supreme Court moderated by Linda Greenhouse and of an interview with Carrie Severino, whose group, the Judicial Crisis Network, is opposing the Kagan nomination.
• On her blog Court Beat, Joan Biskupic writes about Justice Scalia’s recent graduation speech at Langley High School, where one of his grandchildren was graduating.
• MSNBC.com examines the White House’s record on judicial nominations and confirmations, highlighting its slow pace and noting that “some of [the President’s] allies are disappointed.”