Tuesday round-up

By Jay Willis
on Feb 16, 2010 at 9:30 am

At the National Law Journal, Tony Mauro discusses the possibility of a rare pair of vacancies on the Supreme Court.  Mauro speculates that multiple openings could actually discourage the Senate from engaging in consecutive drawn-out confirmation battles, and he notes that a “current Cabinet member who has already been vetted and confirmed may be an easier sell.”  At the Sentencing Law Blog, Douglas Berman weighs in on Mauro’s piece.  He urges the president to nominate more “firsts,” and he adds that the president should minimize the possibility of a contentious confirmation process by nominating a candidate quickly after a sitting justice announces his or her retirement.

The Washington Post has an editorial discussing the Schumer-Van Hollen legislative response to Citizens United. Although the editorial approves of the transparency measures proposed by the legislation, it regards the proposed limitations on foreign corporations are too restrictive, and it concludes by urging Congress to respond to Citizens with legislation that is “sensitive to the realities of a globalized economy.”

At Politico, Senator John Kerry also discusses the implications of the Citizens decision, focusing on what he describes as its magnification of the “deep existing concerns about the role played [in the political system] by foreign nationals and foreign countries.  Senator Kerry concludes by calling for a constitutional amendment to “make it clear . . . that corporations do not have the same free-speech rights as individuals do.

An editorial in The New York Times covers Justice Kennedy’s recent criticism of California’s three-strikes law.  The editorial agrees with the Justice’s criticism, but it also notes that Justice Kennedy was also part of a five-four majority that rejected a challenge to the law’s lengthy sentences (in Ewing v. California), and it urges the Court to “enforc[e] constitutional prohibitions” on excessive punishment.

John Elwood at the Volokh Conspiracy discusses Thaler v. Haynes, in which Texas has filed a cert. petition seeking review of the Fifth Circuit’s holding in favor of a convicted murderer on the ground that the state court was unable to “perform the sort of factual inquiry Batson requires” in its voir dire proceedings.  The case has been relisted several times since late November, and the Court called for the record in early January. Ellis speculates that the Court may summarily reverse the decision below on the ground that the Fifth Circuit should have used a more lenient standard of review in examining the state court’s ruling.

The Yale Daily News reports on Justice Breyer’s remarks at Yale Law School on Monday (both links via How Appealing).  The justice discussed several landmark cases, but he declined to comment on the California Prop. 8 trial currently in federal district court, a case that may soon come before the Supreme Court.  The Boston Herald also has coverage of Justice Breyer’s remarks.

Finally, KETV (Omaha) has a story on Shon Hopwood, the bank-robber-turned-successful-Supreme-Court-practitioner who now plans to attend law school (video available).