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Tuesday round-up

Although the Senate Judiciary Committee is expected to vote in favor of Elena Kagan’s nomination, it is not expected to do so today. As the AP’s Julie Hirschfeld Davis reports, Republican senators on the committee will ask to delay the vote on the nomination for another week; the chairman of the committee, Senator Patrick Leahy, has said that he will grant their request.  According to the Ninth Justice, Republicans have cited the need to review Kagan’s recent written responses to senators’ questions as one reason for postponing the vote.

At the National Review Online, Senator Orrin Hatch outlines the bases for his opposition to Kagan’s confirmation, arguing that her lack of legal experience and “activist judicial philosophy” “make her inappropriate for serving on the Supreme Court.”  The Christian Science Monitor’s Warren Richey summarizes Hatch’s essay and adds that “Republicans look set to follow [Hatch’s] lead.” Politico’s Manu Raju suggests, however, that some “wayward Republicans” might support Kagan’s nomination, assuming Republican Senator Lindsay Graham’s vote tracks his “strong signals that he may…vote for…Kagan to be confirmed to the Supreme Court.”

Interest groups also have focused on Kagan’s lack of judicial experience:  in the Boston Globe, Bloomberg News reports that the Lawyers’ Committee for Civil Rights Under Law has declined to endorse Kagan on the ground that there is “not enough for [the committee] to say how she would rule on civil rights issues.”

Kagan’s recusal obligations also continue as a topic of discussion.  The editorial board of the Wall Street Journal argues that because at least one challenge to the health-care reform litigation was filed before Kagan was nominated to succeed Justice Stevens, Kagan likely “expressed an opinion on the merits of health-care litigation.”  Citing that likely involvement and the views that she expressed on the Commerce Clause during her confirmation hearings, the board concludes that Kagan should recuse herself from challenges to health-care reform to avoid undermining “public confidence in her fair-mindedness.”

At NPR and the New Republic, Naomi Schoenbaum suggests that Kagan “might very well be the first female nominee to the Supreme Court who does not define her gender as salient to her public life.” At the same time, however, Schoenbaum notes that Kagan’s “post-identity approach to gender may tell us more about how the women’s movement has evolved in recent decades than it does about her future jurisprudence on the Supreme Court.”

Another recent Court nominee is also in this morning’s headlines. Justice Sotomayor, confirmed less than one year ago, already has plans to write her memoir. Jess Bravin reports at the WSJ Speakeasy that her recollections will be “published simultaneously in English and Spanish.” The New York Times’ Julie Bosman, the NY Daily News, and the WSJ Law Blog’s Ashby Jones also have coverage, as does the Washington Post’s Reliable Source column.

The fall-out continues from the Court’s recent decision in McDonald v. City of Chicago, holding that state and local gun regulations must comport with the Second Amendment. Chicago quickly passed a new firearms law in response to that decision; the AP’s Don Babwin discusses the law – which took effect yesterday, and which some officials are characterizing as “the strictest of its kind” – in the Los Angeles Times. In the National Law Journal, David S. Cohen and Maxwell Stearns rely on McDonald to illustrate their point that the “Court needs . . . someone who can forge consensus.” Describing the Court as “sometimes badly fractured,” they emphasize that although a majority of the Court voted to apply the Second Amendment to the states, at least five Justices rejected each rationale for such an application. In her end of the Term wrap-up, by contrast, NPR’s Nina Totenberg observes that “[w]hile the major decisions of this [T]erm deeply split the [C]ourt, there were considerably fewer such divisions this [T]erm than last.”


  • In the Washington Post, Gabriel J. Chin and Kevin R. Johnson note that in United States v. Brignoni-Ponce (1975), the Court in fact approved of the kind of racial profiling that many believe will result from Arizona’s immigration law.  The authors urge the U.S. and Arizona Supreme Courts to “reconsider the endorsement of race-based law enforcement.”
  • In the Los Angeles Times, David Savage reviews Laurence Fishburne’s portrayal of Justice Thurgood Marshall in the play “Thurgood,” which recently began a run in Los Angeles.
  • At the Constitutional Law Prof Blog, Steven D. Schwinn analyzes Elena Kagan’s response to a written question by Senator John Cornyn regarding Congress’s treaty power, as well as the question itself.
  • The Volokh Conspiracy ’s Eugene Volokh predicts that the Ninth Circuit will uphold a ban on gun possession in county parks and fairgrounds; that court had originally planned to rehear a case upholding the ban en banc, but it instead returned the case to the original three-judge panel with instructions “to consider [the case] further ‘in light of McDonald v. City of Chicago.’”
  • The editorial board of the Washington Post praises the Court’s decision in City of Ontario v. Quon, the text-messaging search and seizure case, for striking “a welcome balance between the mandates of law and the dictates of common sense.” The board argues that the majority wisely avoided making “broad pronouncements in the midst of a rapidly changing technology environment.”
  • At Balkinization, Rick Pildes highlights the potential consequences of the Court’s decision in Free Enterprise Fund v. Public Company Accounting Oversight Board for the Social Security Administration.
  • First One @ One First’s Mike Sacks discusses the constitutional issue – on which there is a split among the circuits – lurking in a pending obscenity trial: whether, when evaluating materials disseminated over the internet, a jury ought to apply national or local “community standards.”