Wednesday 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.

As next weeks 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 Courts approach to numerous issues. The signatories to the letterwhich was addressed to Patrick Leahy, the Chairman of the Senate Judiciary Committee, and Jeff Sessions, the committees ranking memberincluded every living former Solicitor General except for Robert Bork. The New York Timess 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 Kagans 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 Fairs VF Daily blog also takes note of Sessionss statements.

Washington, DCs FOX5 has an interview with CQ Politicss Seth Stern on the criticism that Kagan is receiving from both liberal and conservative groups on her views on abortion.  And Slates Dahlia Lithwick previews Kagans confirmation hearings, observing that [Kagan] isnt averse to tough scrutiny. Shes 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 constitutionalismthe 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 Courts recent opinions are still receiving attention. At the Volokh Conspiracy, Eugene Volokh discusses the Courts opinion in Holder v. Humanitarian Law Project, the Terms only war-on-terror case: he describes himself as troubled by the question of whether speech thats 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. PrawfsBlawgs 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 Scalias 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. Timess Opinion L.A. blog, Michael McGough emphasizes the narrowness of the Courts ruling in the text-messaging case City of Ontario v. Quon, while at Balkinization, Frank Pasquale reacts to the Courts 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 Courts 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 Frankens speech at last weekends American Constitution Society conference and defending the Courts 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 Scalias recent graduation speech at Langley High School, where one of his grandchildren was graduating.
• MSNBC.com examines the White Houses record on judicial nominations and confirmations, highlighting its slow pace and noting that some of [the Presidents] allies are disappointed.