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Friday round-up

Yesterday the Kagan confirmation hearing drew to a close, with testimony in the afternoon and evening from witnesses brought by both major parties.  C-SPAN has the video.

Paul Kane and Amy Goldstein report at the Washington Post that Kagan is likely to be confirmed with little Republican support — and possibly without a vote from Democrat Arlen Specter.

Some news covered yesterday’s witness testimony.  The ABA Journal has an in-depth article on the ABA witnesses who spoke, explaining how an ABA committee arrived at its evaluation of Kagan as a “well qualified” nominee – the highest possible rating.  At the Wall Street Journal (subscription required), Naftali Bendavid focuses on the members of the military panelists who testified – with most opposing, but some supporting, her nomination.

Jonathan Adler at the Volokh Conspiracy commends Professor Jack Goldsmith, a witness for the Democrats, for telling the Committee yesterday that the “decision to nominate a highly qualified individual who swims in the broad mainstream of American legal life – a description that Kagan easily satisfies – warrants deference from the Senate.”

Huffington Post’s Jason Linkins provides background on William Olson, one of the Republican witnesses who testified at Kagan’s hearings yesterday, asserting that Olson’s law firm is “heavily involved in all sorts of conservative cause celebres, from the standard-issue, to the totally bonkers.”  He also talked with Rachel Maddow about it on the air (see the video).

The WSJ Law Blog’s Ashby Jones reports that the National Rifle Association is now officially opposing Kagan’s confirmation — but Jones doubts whether this will change many votes.  As James Oliphant explains in the Los Angeles Times, this means that a vote for Kagan will count against a Senator in the organization’s formal ranking system.  As the BLT points out in its coverage of the NRA announcement, the Brady Center also officially endorsed Kagan.  The Hill and Jess Bravin (at the Wall Street Journal’s Washington Wire blog) also have stories.

Most press and commentary, however, are still generally devoted to Kagan’s questioning, which wrapped up on Wednesday.  Yesterday, Robert Barnes and Amy Goldstein at the Washington Post and Joan Biskupic at USA Today reported on the conclusion of Kagan’s remarks.  Also in the Washington Post, Ann Gerhart noted that Kagan, even after seventeen hours of grilling by senators, seemed to enjoy herself.  At Bloomberg, Ann Woolner suggests that Republicans walked away from the hearings looking worse, while Kagan emerged “unbruised.”

Others focused on particular themes or exchanges in the questioning.  At CNN, legal historian Mary Dudziak draws parallels between the criticism of former Justice Thurgood Marshall at Kagan’s confirmation hearing and Marshall’s own confirmation hearing, at which senators criticized civil rights leader Martin Luther King, Jr.  Thurgood Marshall, Jr. defends his father in a Washington Post op-ed, and, as someone who knows Kagan, expresses confidence that she “has far too much respect for the rule of law and for the Supreme Court to render decisions by seeking to channel anyone else.”

At the Volokh Conspiracy, Ilya Somin comments on Kagan’s remarks about property rights and the Kelo v. New London case.  After reviewing all of his notes from the hearings, Ilya Shapiro at Cato@Liberty summarized the highlights, including that “Kagan refused to identify anything the government couldn’t do under its Commerce Clause power.”  Joan Biskupic at USA Today writes about the senators’ preoccupation with Citizens United during the hearings.

Greg Stohr at Bloomberg reports on Kagan’s rejection of the “judge as umpire” analogy on which now-Chief Justice Roberts relied at his 2005 confirmation hearing.  Howard Wasserman says at ACSblog that Kagan “laid out a pretty good map of how to attack” the judge-umpire analogy, though he expects it will live longer still.

The editorial board of the Washington Post weighs in on the hearings. It describes some of Kagan’s answers as overly general but characterizes an exchange between Kagan and Republican Senator Lindsey Graham – discussing the national security and the consequences of presidential elections for judicial nominations –as “refreshing, open and informative and a useful reminder of how confirmation hearings can and should work.”

In an opinion piece in the L.A. Times, Jon Healy picks up a YouTube video of Senator Coburn’s question regarding whether a law requiring Americans to eat three servings each of fruits and vegetables per day would be constitutional, characterizing Kagan’s answer as illustrating the difference between liberal and conservative judicial activism.  At the New York Times, Adam Liptak also focuses on that exchange, and on Kagan’s comments more generally that courts should not be in the business of striking down laws they think imprudent.  James Oliphant at the L.A. Times took Kagan’s response to the fruits-and-vegetables-law question as a slip, because she answered “more like the law professor she is,” rather than giving the common-sense answer that the law would be unconstitutional.

Pundits are also still reflecting on the nature of the confirmation hearings.  A Wall Street Journal editorial criticizes the Democrats for using Kagan’s hearings as a proxy fight against the Roberts Court and its rulings.  Dahlia Lithwick writes a “Brief Summary of Constitutional History According to the Senate” in Slate, contending that, at least, the hearings offer “valuable insight” about Democrats’ and Republicans’ views on constitutional law and history.  In the New Republic, Jeff Rosen similarly describes both Democrats and Republicans as having articulated clear visions of law.  At A Plain Blog About Politics, Jonathan Bernstein suggests that a few senators from each party should be picked as lead questioners (thanks to Ezra Klein for the link).

Nor have the Court’s final opinions in argued cases, handed down on Monday, faded from the headlines or the commentary.  The Associated Press (via the New York Times) reports that, two days after the Court’s decision in McDonald v. City of Chicago, the city of Chicago has announced what “city officials say is the strictest handgun ordinance in the United States,” which would ban all handguns outside the home and all gun shops within the city.  The Wall Street Journal adds that the ordinance would require gun registration and safety training.  The Chicago Tribune also has a story.

Gerald Magliocca at Concurring Opinions suggests that the Court in McDonald should have been bound by the selective incorporation approach and reliance on the expectation that there was no individual gun right.  Brian Doherty at Reason has a lengthy analysis of the McDonald opinion and its likely consequences, noting that, to some surprise, “the NRA did not have lawsuits loaded and ready to fire the day McDonald came down.”

Writing for the FIRE blog, Erica Goldberg disputes the characterization of the school administration endorsement of a religious student group at issue in Christian Legal Society v. Martinez as a “subsidy” of speech – which, she says, wrongly implies that the school endorses the group or its creed.

At Slate’s Breakfast Table, Paul Clement notes that the ruling in the patent case Bilski v. Kappos “doesn’t feel much like an affirmation” of the Federal Circuit, in whose decisions the Court has lately intervened frequently.

Surveying the entire OT09 from a criminal law perspective, Douglas Berman at Sentencing Law & Policy suggests that although criminal defendants accumulated a number of “little wins,” they lost the vast majority of cases that could have produced huge wins.


  • At Sentencing Law & Policy, Douglas Berman points out a Seventh Circuit ruling that at least appears to be in tension with the Court’s recent ruling in Carr v. United States.
  • At the Washington Legal Foundation’s Legal Pulse blog, Richard Samp has observations on the Court’s decision last week in Holder v. Humanitarian Law Project.
  • ACSblog interviews Reva Siegel and Linda Greenhouse about their new book on the abortion debate before Roe v. Wade (1973).
  • Geoffrey Stone at ACSblog offers a parody of an exchange between a hypothetical nominee to the Court and a hypothetical senator.
  • A Fox News poll finds that sixty-four percent of Democratic respondents would vote to confirm Kagan, while sixty-one percent of Republicans would vote against her.
  • The Associated Press (via ABC News) draws attention to a mass email appeal yesterday to Democratic supporters that used Kagan as the centerpiece of its request for donations.
  • An article in the Philadelphia Inquirer traces Kagan’s Philadelphia roots, going back to her mother, who was born there.
  • The Conglomerate takes a jab at the first sentence of the Free Enterprise Fund v. PCAOB decision.