Monday round-up

By James Bickford
on May 24, 2010 at 9:37 am

With Elena Kagan’s confirmation hearings nearly a month away, the analysis of her academic writings continues.  The Associated Press (via USA Today) describes Kagan’s views on judging as opposed to the model put forward by Chief Justice Roberts:  “when judges make decisions, they must take account of their values and experience and consider politics and policy, rather than act as robotic umpires.”  In the New York Times, Charlie Savage concludes that she “has been a strong supporter of… efforts to expand presidential power over domestic affairs.”  Nathan Koppel of the Wall Street Journal Law Blog reports on a speech that Kagan gave to Princeton alumni in 2003, in which she argued that the Court should defer to Congress when it acts to enforce the guarantees of the Fourteenth Amendment. At Slate, two history professors evaluate Kagan’s undergraduate thesis on socialism in New York City in the early twentieth century; they conclude that the thesis leaves “little doubt that Kagan would have become a superb historian if she had wanted to be one.”  Blogging for The Atlantic, Stuart Taylor Jr. parses Kagan’s Oxford master’s thesis for clues into her views on Graham v. Florida, in which the Court recently declared it unconstitutional to sentence juveniles to life without parole for non-homicide crimes.  In Taylor’s view, it is difficult to see how “Graham was any more ‘plausibly rooted in . . . the Constitution’ than the liberal Warren Court decisions that she criticized in her master’s thesis.”

At the Volokh Conspiracy, Jonathan Adler notes that as Solicitor General Kagan did not file an amicus brief in Graham, although federal law allows for the same juvenile life-without-parole sentences at issue in the case, and he suggests that the failure to file a brief will surface at Kagan’s confirmation hearings.  Adler also compares Justice Sotomayor’s endorsement of the majority opinion in Graham with her comments on the limited utility of international law in constitutional interpretation; he concludes that the two are consistent.

On the op-ed page of the Boston Globe, Reneé Loth argues that “graduating with honors from [one of] the nation’s most prestigious law schools” is a sensible qualification for a life appointment to the Court, rather than a cause for concern about academic diversity on the Court.  In the Washington Post, the president of Citizens United opposes Kagan’s nomination on the ground that she likely opposes the Court’s decision in the eponymous case; Sen. John Cornyn has raised similar concerns, as the New York Daily News reports.  Also on the Post’s op-ed page, a Marine who recently graduated from Harvard Law School favorably describes Kagan’s treatment of the veterans who studied there.

In other nomination news, the Blog of Legal Times reports that the Senate Judiciary Committee has set aside $300,000 to cover the costs of Kagan’s confirmation hearing – nearly half of what was budgeted (although not necessarily spent) for the Sotomayor hearing.  Reporting for NPR, Nina Totenberg looks at the recusal practice that would guide Kagan if she were confirmed to the Court.  Totenberg cites the analysis of Tom Goldstein on this blog to suggest that Kagan would likely recuse from roughly one-fourth of the cases in her first term.  At the Huffington Post, Sam Stein describes Kagan’s admiration of Archibald Cox, the Harvard Law professor and Watergate special prosecutor who was ultimately fired by President Nixon.  Finally, blogger Van Wallach, who worked with Kagan on the Princeton campus newspaper, reviews her undergraduate journalism.

As Lyle Denniston reported on this blog, on Friday the D.C. Circuit ruled that military prisoners at Bagram Air Base in Afghanistan could not file habeas corpus petitions in American courts.  The unanimous decision in Maqaleh v. Gates, a defeat for those attempting to extend the logic of the Court’s ruling in Boumediene, was covered by the Christian Science Monitor, Los Angeles Times, McClatchy, New York Times, Wall Street Journal, Washington Post, and the Blog of Legal Times.  At Balkinization, Deborah Pearlstein criticizes the D.C. Circuit’s ruling and suggests that, given the Obama Administration’s practice of mooting such controversial detainee cases before they reach the Supreme Court, the decision will have less practical impact than might be expected.

C-SPAN posts video of recent testimony by Justices Scalia and Breyer on the Administrative Conference of the United States.  On a Washington Post blog, Ed O’Keefe notes the Justices’ responses to a question regarding Twitter: Scalia pleaded ignorance, while Breyer described his fascination with the role of messaging service in the Iranian uprising last summer.  And on the op-ed page of the New York Times, Justice O’Connor argues for the adoption of a “merit selection system” for state judges, which is under consideration in Minnesota and Nevada.

Briefly:

• The editorial board of the New York Times criticizes the Obama Administration for its handling of the first case moving towards trial under the Military Commissions Act of 2009.  The board noted that Omar Khadr would be “the first person in decades to be tried by a Western nation for war crimes allegedly committed as a child.”
• Appellate Daily notes that Justice Stevens has given federal prosecutors until this Friday to respond to Rod Blagojevich’s request for a stay of his trial pending the Court’s decision in the “honest services” cases.
• In the New York Review of Books, Anthony Lewis comments on two recent books on the Court: American Original, Joan Biskupic’s biography of Justice Scalia; and John Paul Stevens: An Independent Life, by Bill Barnhart and Gene Schlickman.  Lewis contrasts the judicial philosophies of their subjects and expresses his hope that “the voices of Justice Stevens and others will slow the rush of judicial radicals to remake America in their conservative vision.”
• Writing in Slate, Judith Resnick connects the recent closing of the Supreme Court’s grand entrance with congressional skepticism about the need for additional federal courtrooms and the Court’s recent rulings restricting plaintiffs’ ability to bring suit.
• At the Wall Street Journal Law Blog, Ashby Jones provides an overview of the strange events that have followed the Court’s decision in Salazar v. Buono: the cross at issue in that case has been removed, then replaced by a replica which was itself ordered removed by the Justice Department.