Monday round-up

By James Bickford
on May 17, 2010 at 9:35 am

As the Kagan nomination enters its second week, the story continues to develop.  On Friday, Miguel Estrada, a prominent conservative lawyer whose nomination to the D.C. Circuit was blocked by Senate Democrats, offered a strong endorsement.  Estrada, who has known Kagan since they were first-year law students together, wrote in a letter to Senators Leahy and Sessions that “[i]f such a person, who has demonstrated great intellect, high accomplishments and an upright life, is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service.”  The BLT and the Washington Post’s PostPartisan Blog both note the Estrada letter; the Associated Press (via CBS News) reports on the support that Kagan has received from Estrada and other conservatives, including former Tenth Circuit Judge (and current Stanford Law professor) Michael McConnell.

Over the weekend, major newspapers began to scour Kagan’s record for insight into her political views.  In the Los Angeles Times, Christi Parsons and James Oliphant contrast the views of abortion implicit in a 1980 op-ed by Kagan for her college newspaper with the 1997 White House memo in which she recommended a compromise on some late-term abortions.  In the New York Times, Adam Liptak mines Kagan’s academic writing on the First Amendment in the early 1990s, concluding that it suggests “that her views on government regulation of speech were closer to the Supreme Court’s more conservative justices, like Antonin Scalia, than to Justice John Paul Stevens, whom she hopes to replace.”

In the Wall Street Journal, Jess Bravin reports on several memos that Kagan wrote as a law clerk, addressing the scope of liability for state actors under the Fourteenth Amendment.  Kagan advised Justice Marshall to vote to deny cert. in DeShaney v. Winnebago County; cert. was granted and the Court held that there was no Bivens liability for a state agency that failed to protect a child from abuse at the hands of his father.  The Wall Street Journal also reports that the NRA has criticitzed the Kagan nomination, in part because she “as a Clinton aide, helped draft a presidential directive temporarily suspending imports of semiautomatic assault-type rifles.” 

The record-scouring has just begun: as Josh Gerstein reports at Politico, the Clinton Presidential Library is working to release as much as 160,000 pages of records from Kagan’s stint at the White House.  At the Volokh Conspiracy, Jonathan Adler cites this figure to suggest that the claims that Kagan is a nominee without a paper trail are overstated.

News coverage also focused on Kagan’s tenure as solicitor general and what it may portend for her confirmation hearings.  In USA Today, Joan Biskupic suggests that Kagan’s “style as solicitor general is likely to serve her in confirmation hearings.”  In the National Law Journal (via Law.com), Tony Mauro reviews “a number of missteps” that Kagan made in her year arguing before the Court, and he speculates that they may be used to argue that she is insufficiently seasoned.  But the Associated Press (via the Washington Post) concludes that Kagan “held her own” at oral argument; Prof. Stephen Carter argues in a New York Times op-ed that “Ms. Kagan gave as good as she got” and that no acrimony from her arguments is likely to carry over into her time on the Court.  At Balkinization, Rick Pildes defends the relevance of Kagan’s academic experience.

Senators have begun to stake their positions in advance of the confirmation hearings.  As the Wall Street Journal and the Associated Press (via USA Today) report, Sen. Jon Kyl said on Sunday that, “[t]he filibuster should be relegated to the extreme circumstances, and I don’t think Elena Kagan represents that.” (Full video of Sens. Feinstein and Kyl on Face the Nation is here.)  However, as Reuters reports, Sen. Jeff Sessions told ABC’s “This Week” (video here) that “[w]e’ll be looking at her testimony because she has so little other record.  This is going to be a big deal.  It’s so important how she testifies.”  NPR broadcast an interview between Scott Simon and Sen. Sessions.  Although many commentators have speculated that Kagan’s past criticism of confirmation hearings might force her to be more forthcoming at her own, the Christian Science Monitor suggests that “neither Kagan’s past remarks nor her lack of a judicial record is likely to have a determining factor on her candidacy.”

Others are expressing their views as well.  Despite Josh Gerstein’s argument (at Politico) that Kagan’s reluctance to champion “the old-line civil rights positions on race-based programs and preferences” puts her “squarely in the centrist Democratic mainstream but at odds with the views of some of the party’s most loyal supporters in the minority community,” the Associated Press (via FoxNews) reports that the NAACP has endorsed the nomination.  As the Associated Press (via Huffington Post) reports, former First Lady Laura Bush praised the Kagan nomination, saying she was “really glad” that the Court would have three female Justices.  On the op-ed page of the Washington Post, Ann Gerhart weighs the impact of third female Justice on the Court. 

On the same op-ed page, Christopher Edley, dean of the law school at Berkeley, argues that, in contrast to some calls for institutional diversity on the Court, “[w]e should prefer institutions that are elite in terms of excellence, while more democratic in terms of access.”   On the op-ed page of the Los Angeles Times, Gregory Rodriguez suggests that “the prospect of adding a Jewish New Yorker to the six Catholics and two other Jews on the high court suggests not the death of WASP culture but its ultimate triumph.”

Finally, insights into Kagan’s early life and career continue to emerge.  At the Wall Street Journal Law Blog, Jess Bravin offers a peek into Kagan’s law school career, including grades and letters of recommendation.  The New York Jewish Week offers a perspective on Kagan’s childhood, including stories from her bat mitzvah – the first in her congregation; the Jewish Daily Forward reports on the ethnic and political makeup of the Kagan family’s New York neighborhood. 

Briefly, in non-nomination news:

•  Justice Kennedy spoke to a crowd of Florida high schoolers on Friday.  As the Palm Beach Post News reports, the Justice discussed his dislike of the term “swing Justice,” saying that “I don’t swing around the cases. They swing around me.”  The Palm Beach Daily News, Law.com, and the Associated Press also report on the speech.
• Justice Sotomayor gave a speech to the graduates of St. Lawrence University on Sunday, as the Times Union (Albany, NY) reports.
• The Justices recently enjoyed their annual spring musicale, as Robert Barnes reports for the Washington Post.