Friday round-up

By Adam Chandler
on May 21, 2010 at 10:19 am

Supreme Court nominee Elena Kagan continues her meetings with senators, visiting yesterday with Senator Olympia Snowe of Maine.  According to the Associated Press (via the Washington Post), Senator Snowe said that Kagan “appears for now to have the qualifications and balanced approach to be a justice,” but Snowe has not decided how she will vote on the nomination. The Associated Press (via the Washington Post) also reports that Kagan criticized the Citizens United ruling in her meeting with Snowe.

In the other house of Congress, the House Judiciary Committee held a hearing yesterday (previewed by the BLT) on reviving the Administrative Conference, a body that was once chaired by Justice Scalia. Justices Scalia and Breyer appeared as witnesses at the hearing. When the chairman of the committee, John Conyers, said he had a question that he had been told was out of bounds, Justice Scalia interrupted with, “Mr. Chairman, we’re both friends of Elena Kagan, and I don’t think we’re willing to go beyond that” (the Associated Press via the New York Times).

The L.A. Times reports that it will be “very difficult” for the Clinton Presidential Library to process the Senate Judiciary Committee’s request for documents related to Kagan’s tenure in the Clinton White House in time for her hearings, which begin on June 28. Terri Garner, the library’s director, says that an archivist must read every document before release and that both President Clinton and President Obama can block the release of any document that they believe falls within the attorney-client privilege. The Wall Street Journal’s Washington Wire blog reports that Kagan’s four years in the White House generated 168,000 pages of documents, half of which are e-mails.

In other Kagan news, Denise Lavoie has an article for the Associated Press (via the Washington Post) about Kagan’s tenure as dean of Harvard Law School. Lavoie writes that Kagan “gets high marks as a peacemaker for the fractious faculty of Harvard Law School while she was dean. But even her supporters here say she also has a temper.” Ed Whelan of the National Review Online examines Kagan’s Oxford thesis (via NPR), and on her blog Court Beat, Joan Biskupic questions the extent to which “a new, junior justice” can persuade Justice Kennedy, citing his “force” in Graham v. Florida as evidence. (More on Graham to come.)

Four pieces emerged yesterday about elitism and the homogeneity of the Justices’ law school training. Finlo Rohrer of BBC News has an article that asks, “why should two educational bodies provide all of the US’s most senior judges?” Meanwhile, an op-ed by Saul Cornell in the Christian Science Monitor makes the case for an elitist Supreme Court. Cornell points out that “criticism of Kagan’s elitism sounds more like the complaints of the Anti-Federalist opponents of the Constitution than they do its Federalist defenders.” Chris Arledge takes the opposing position in the American Thinker, arguing that the Court’s decisions are “based less on legal training (or even a high intelligence quotient) than they are the judge’s own values, and high LSAT scores or degrees from fancy institutions are no indication of sound moral judgment.” Dave Sidhu, in an op-ed for JURIST, agrees with Arledge, writing that Kagan’s “nomination comes at a cost—the reinforced perception that merit matters, and it matters most when it has been validated by certain rarefied institutions.”

In the Chronicle of Higher Education, David Fontana looks to the legal training of President Obama, Justice Sotomayor, and Kagan’s generation of lawyers to make a different point: “[A]ll three are part of the law-school ‘postradical generation.’ Just as that helps us better understand their careers, the dynamic also helps explain some of the difficulties Obama will have in appointing influential liberal judges. . . . [T]here are fewer law professors who are truly liberals.” Howard Wasserman responds to Fontana’s article on PrawfsBlawg, saying “[t]he whole piece is worth a read” but that he is unconvinced by Fontana’s description of a lack of eligible liberals to serve as federal judges. Ann Althouse makes the same point on her blog: “There are plenty of strongly liberal and lefty lawprofs and if you want theoretical ambition you can find it.”

As indicated above, analysis of Graham v. Florida—the juvenile life-without-parole case decided Monday—continues. At ACSblog, Stephen Harper and Randy Hertz distill the theme of the case: “kids are different.” At Concurring Opinions, Youngjae Lee highlights a passage of limiting language in Kennedy v. Louisiana (holding that the death penalty was unavailable for nonhomicide crimes) that does not reappear in Graham, a case that is ostensibly a “corollary” to Kennedy. Finally, Wendy Kaminer has a piece for the Atlantic on the federal sex offender case, United States v. Comstock, which was also decided on Monday. Kaminer writes that the Supreme Court “embrace[d] an expansive vision of federal power that should agitate right-wing advocates of freedom and small central government, but probably won’t.”

Briefly:

• The Associated Press (via the L.A. Times) reports that a replacement for the cross at issue in Salazar v. Buono was erected on Sunrise Rock in the Mojave Desert, and within twenty-four hours, was taken down by officials who said it was illegal.
• At PrawfsBlawg, Steve Vladeck observes that “a clear and sharp circuit split” has been created on an Eleventh Amendment issue presented by a pending cert. petition, Virginia Office of Protection & Advocacy v. Reinhard. (SCOTUSblog had already listed Reinhard as a “Petition to Watch” in January; the Court is now waiting for the views of the Solicitor General.)
• The L.A. Times reports that Jerry Brown, California’s attorney general and gubernatorial candidate, has filed a cert.-stage amicus brief urging the Court to hear an art ownership dispute involving Pasadena’s Norton Simon Museum.
• Jeff Shesol, author of Supreme Power, has a post at ACSblog on the lessons that President Obama can draw from President Roosevelt’s Supreme Court strategy. Shesol writes that Obama may “be losing the larger war over the meaning and relevance of the Constitution . . . because the right continues to dominate the national discussion about the role of judges in a democracy.”
• Daniel Popeo of the Washington Legal Foundation has an op-ed in the Washington Examiner in which he calls the assumption that the Roberts Court is reflexively pro-business “little more than an inside-the-Beltway urban legend.”
• Paul Bedard’s Washington Whispers blog for U.S. News and World Report reports that “Democrats are pushing the court to hire more black and Hispanic law clerks.”
• And finally, writing for the Huffington Post, Roger Abrams is eagerly awaiting the Court’s ruling in American Needle Inc. v. NFL, an antitrust case about professional sports leagues.