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Tuesday round-up

By a vote of thirteen to six, the Senate Judiciary Committee today approved Elena Kagan’s nomination to the Supreme Court. With the exception of Republican Senator Lindsey Graham, who voted for Kagan, the vote hewed closely to party lines. Coverage is available at SCOTUSblog, the Los Angeles Times, CBS News, NBC News, AFP, The Caucus Blog of the New York Times, and the WSJ Law Blog.

The vote by the committee, which is made up of twelve Democrats and seven Republicans, came as no surprise.  As MSNBC’s Carrie Dann and Jason Strachman Miller note, committee members generally appeared ready to divide along party lines. Prior to the vote, as CNN reported earlier today, Graham had indicated that he would support Kagan’s nomination, while at Bench Memos, Republican Senator Tom Coburn explained his opposition. Pre-vote coverage is available from the Hill, the BBC, CNN, NPR, and the AP.

Remarking on the Senate as a whole, USA Today’s editorial board laments the lack of bipartisan support for Kagan, deeming the arguments made by her detractors “unimpressive.” Jess Bravin discusses one such argument – Kagan’s role in a policy statement issued by the American College of Obstetricians and Gynecologists regarding partial-birth abortion –at the WSJ’s Washington Wire Blog. At the San Francisco Chronicle Politics Blog, Bob Egellko discusses Republicans’ claim that Kagan’s interpretation of the Commerce Clause permits unduly far-reaching exercises of government power. The editorial board of the New York Times sharply criticizes that claim, arguing that “[a] vote against the commerce clause is a vote against some of the best things that government has done for the better part of a century.”

If Kagan is confirmed, she may need to decide whether to recuse herself from hearing challenges to health-care reform legislation. The Christian Science Monitor‘s Warren Richey summarizes Kagan’s responses to questions from Republican Senators on her role in defending the legislation:  in written submissions made yesterday, she told them that as Solicitor General, she “attended at least one meeting where the existence of [litigation challenging the legislation] was briefly mentioned, but none where any substantive discussion of the litigation occurred.” As Bloomberg and the AP also both report, Kagan told Senators that she would decide on a “case-by-case” basis whether to recuse herself from controversies in which the law was at issue.   At Bench Memos, Carrie Severino writes that the “utter implausibility of the idea that she never discussed of any issues surrounding health care is mitigated only by the calculated way she has approached her career thus far.”

At Concurring Opinions, Gerard Magliocca posts an abstract of his upcoming paper, which “looks at whether the Court will invalidate the individual mandate by examining how other transformative laws were treated under similar political circumstances.” In an opinion piece for Bloomberg, Amity Shlaes argues that “[i]nstead of a congressional hearing about Kagan, Congress should hold a hearing about past Supreme Court rulings that will shape many of [the Court’s] future opinions.”

At least one other case that may soon reach the Court on the merits is also attracting attention. SCOTUSblog’s Lyle Denniston discusses a cert. petition recently filed by the U.S. government in which the “Obama Administration has asked the Court to give officials wide-ranging legal immunity for enforcing . . . a law that permits the arrest and detention of an individual sought as a ‘material witness.’”

Coverage of the Court’s recently decided cases continues as well.  In Black v. United States, the Court cast doubt on the “honest services” conviction of Conrad Black; Bloomberg and the AP report that Black was recently granted bail. At the Opinionator Blog of the New York Times, Stanley Fish discusses the Court’s opinion in Christian Legal Society v. Martinez. He argues that “[u]nder cover of ‘neutrality,’ Hastings, with the [Court’s] approval, is imposing the goals and ideology of liberal multiculturalism on the very diverse members of the law school’s community.” At the Huffington Post, Lisa Schirch highlights what she describes as four “false assumptions” undergirding the Court’s decision in Holder v. Humanitarian Law Project, which upheld a statute prohibiting the provision of “material support” to terrorist organizations. Finally, Sentencing Law and Policy’s Doug Berman writes that the Court’s decision in Dillon v. United States, a sentencing guidelines case, may prompt the U.S. Sentencing Commission to make retroactive its “new defendant-friendly amendment to the criminal history sentencing guidelines.”


  • First One @ One First’s Mike Sacks reprints excerpts from an article discussing Justice Potter Stewart’s recently released papers, pointing out a possible tension between the papers and The Brethren.
  • The WSJ Law Blog’s Jess Bravin discusses statistics that “[identify] which [J]ustices speak first, longest and most often” at oral argument.
  • Ashby Jones, also at the WSJ Law Blog, highlights portions of Justice Thomas’s recent speech at the Utah State Bar’s 2010 summer convention.
  • The AP (at WNCT) reports that “Supreme Court officials say they’re looking into a complaint by a teacher who says she and her students were prevented from praying outside the court building in Washington.”