Friday Round-up

By Anna Christensen
on Oct 9, 2009 at 9:23 am

To mark its “Supreme Court Week” coverage, CSPAN has posted a number of Court-related TV programs on its website.  Among the documentaries featured: an interview with Joan Biskupic and SCOTUSblog’s Lyle Denniston on the role of journalists at the Court; a profile of Clerk of the Court William Suter; a discussion of the building itself from an historical perspective; and conversations with veteran Supreme Court attorneys.  Over the weekend, CSPAN will air interviews with all nine Justices.

In this month’s new issue of the ABA Journal, Richard Brust has a piece entitled “No More Kabuki Confirmations,” a play on Vice President Joe Biden’s analysis that Supreme Court confirmation hearings are like “a Kabuki dance” because of the alleged superficiality of the content covered.  Brust paints confirmation hearings as marred by the subtle balance between senators’ eagerness to press questions and nominees’ hesitancy to give more detailed answers than necessary.  Detailing the hearings of Robert Bork and Justices Sotomayor and Brandeis as examples of particularly messy confirmation processes, Brust identifies several potential solutions, including shifting focus away from disqualifications and toward qualifications; recognizing that Justices do have a hand in policy decisions; and even instituting judicial elections.  PrawfsBlawg recaps the article, but cautions that the assessment it paints of confirmation hearings is “too rosy.”  According to the blog, confirmation hearings risk contributing – as Justice Sotomayor’s did – to the “dumbing down” of legal discourse.  ACSblog discusses the ABA’s coverage as well.

Also at PrawfsBlawg, Chris Lund expands on his blog’s argument with respect to the ABA Journal article in “What I Would Have Said … Reflections on Sotomayor’s Confirmation Hearings.”  Lund posits that Justice Sotomayor could have gone beyond her reliance on what he calls the “make the law” / “apply the law” dichotomy during her confirmation hearings; instead, she might have pointed to Abuelhawa v. United States as an example of the potential balance between “textualist” judicial analyses and those that are more “structural and prudential.”

In response to criticism of an L.A. Times opinion piece he wrote on the issues at stake in Graham v. Florida and Sullivan v. Florida, Bernard E. Harcourt has compiled his research on global juvenile sentencing policy in an article at Balkinization.  Harcourt concludes that, contrary to the challenges put forward by the National Organization of Victims of “Juvenile Lifers,” the U.S. is currently the only country to sentence minors to life imprisonment without parole.  Although some reports in 2008 suggested that Israel joins the U.S. in this regard, Harcourt writes, it has since been shown that Israel does offer parole review to minors, leaving the U.S. as the only nation that does not.  Whether these international norms will inform the Court’s decision in these cases, however, is a question best left to scholastic debate, according to Harcourt.

The discussion of Wednesday’s argument in Salazar v. Buono (08-372) is still going strong.  At the First Amendment Center, Tony Mauro posits that an opinion the case will likely focus less on the Establishment Clause and more on Congress’s 2004 decision to transfer the land on which the cross sits to a private party.  But even if the Court does adopt this narrow focus, Mauro argues, the ruling in Salazar could open “another front in First Amendment litigation:” whether the government can remedy potential constitutional violations simply by “privatizing” the dispute.  Mauro also covers the case at the National Law Journal, where he writes that it no longer seems that the case will be decided on standing, as many had anticipated it would.

At the Washington Post, Ruth Marcus writes in an opinion piece that the cross in question in Salazar gives a clear and unambiguous message of government-sponsored religious exclusionism, contrary to Justice Scalia’s comments on Wednesday, while Geoffrey R. Stone at the Huffington Post suggests that Scalia’s questions during the argument might have been influenced by more than just Court precedent and the Framers’ intent.  PrawfsBlawg’s Paul Horwitz also has an analysis of the argument, opining that Justice Scalia may be correct in his interpretation that a symbol “can be both particular to a specific religion and meant to honor people of other faiths” but suggesting that the Justice has demonstrated inconsistent views with regard to the Establishment Clause.