Friday round-up

By Anna Christensen
on Jun 4, 2010 at 9:46 am

Following a flurry of articles on this week’s opinions, Court commentators have turned their attention back to Elena Kagan’s upcoming confirmation hearings, parsing her records for clues to her judicial philosophy. At the New York Times, Charlie Savage highlights a memo Kagan wrote during her clerkship for Justice Thurgood Marshall, in which she emphatically urged the Justice to overturn a lower court ruling suggesting that a rent-control ordinance was unconstitutional.  The memo, Savage writes, is one of hundreds housed at the Library of Congress that will be used in the coming weeks to illuminate her views. At CBS News, Jan Crawford reports on several additional memos from Kagan’s time as a clerk, including one on a case concerning a prisoner who wanted the state to pay for her to have an abortion, and another concerning a challenge to a school desegregation program.  The documents, Crawford writes, reveal Kagan as “standing shoulder-to-shoulder with the liberal left” in the era of the relatively conservative Rehnquist Court.

In contrast to past Supreme Court nominees, Elena Kagan seems to have generated relatively little controversy or public attention, Ashby Jones remarks at the WSJ Law Blog.  Following up on a story in Wednesday’s New York Times on public reactions (or lack thereof)to Kagan, Jones predicts that, barring a “big surprise” in the documents the White House will release this month, Kagan will continue to keep a low profile and will be confirmed later this summer.  In an opinion piece at the Los Angeles Times, however, Michael McGough argues that some controversy has arisen over Kagan’s records, suggesting that the documents will reveal what we already know – that she is a “liberal Democrat,” although this predilection, he notes, might not “neatly translate into judicial views.”

The AP (via the New York Times) covers the controversy generated by Kagan’s 1995 law review article, in which she bemoans the state of Supreme Court confirmation proceedings.  Several Senators have indicated that they discussed the article with Kagan in the meetings that have followed her nomination, the article notes.  At The Hill, Alexander Bolton writes that the release of several “sensitive” documents related to Kagan’s career – including records concerning her opposition to the military’s “Don’t Ask, Don’t Tell” policy while at Harvard – has generated significant controversy in the Senate and within the GOP.  And at the BLT, Tony Mauro reports on the ABA’s ongoing evaluation of Kagan’s record, noting that the association has played a role in the assessment of federal nominees since 1953.

In a post at the New York Personal Injury Law Blog, Eric Turkewitz investigates Kagan’s time as an associate at the law firm of Williams and Connolly between 1988 and 1991, noting that she “actually did some First Amendment work that was interesting” during her stint in private practice and offering a detailed analysis of the ten cases Kagan has identified as the “most significant litigated matters” that she handled while at the firm.

The discussion continues over the speech delivered by retired Justice David Souter at Harvard’s commencement last weekend.  At her Court Beat blog, Joan Biskupic reviews the ongoing debate between Souter and Justice Scalia over the originalist approach to constitutional interpretation, while at the National Review Online, Ed Whelan takes issue with E.J. Dionne’s piece in yesterday’s Washington Post on Justice Souter’s remarks.  In particular, Whelan challenges Dionne’s “unquestioning acceptance” of Souter’s premise that judges should prioritize constitutional values if necessary, arguing that every constitutional question can be presented as a clash of values and that “judges do not have a roving mandate” to decide their importance.  A second National Review piece, this one by Matthew J. Franck, also critiques the speech and Dionne’s assessment, while the editorial board of the Los Angeles Times praises Justice Souter’s address as “a gracious but firm reply to those who glibly charge the court with ‘activism.’”  And at the New York Times’ Opinionator blog, Linda Greenhouse has a detailed discussion of Justice Souter’s speech as well.

Briefly:

• At ACSblog, Professor Amanda Leiter has a post on the legacy of retiring Justice John Paul Stevens, in which she comments on both her personal experiences while clerking for Stevens during the 2003 Term and his environmental jurisprudence.
• In an essay at the Huffington Post, People for the American Way President Michael B. Keegan argues that the conservative portrayal of a Supreme Court divided between originalist right-wing Justices and “carefree liberals” has been jeopardized by the recent opinion in Citizens United.
• Finally, Josh Blackman speculates on his blog about the “most important question” for Elena Kagan in the lead-up to her confirmation hearings: whether she, like Justice Ginsburg, will wear a “neck doily” on the bench.