Thursday round-up

In advance of next week’s Senate Judiciary Committee vote on Elena Kagan’s confirmation, the vote lines are hardening.  Despite initially criticizing Kagan for being non-responsive at her hearing, Senator Arlen Specter somewhat reluctantly pledged to support her yesterday in a USA Today op-ed, saying she did “just enough” to win his vote – largely because of her support for cameras in the courtroom.  Yet, as Josh Gerstein at Politico details, Kagan opponents are waging an ad campaign targeting other Democratic votes, especially senators in conservative-leaning states.  The Caucus Blog of the New York Times adds two more Republicans — John Thune and John Cornyn – to the list of Senators who have announced that they will vote against Kagan.

At Cato@Liberty, Michael Cannon applauds Republicans who are now pressing Kagan to commit to recusing herself in any case challenging the Obama Administration’s healthcare reform (see yesterday’s round-up for coverage), suggesting that the issue could have dire consequences for Kagan’s nomination: “universal coverage is so important to the Left that if Kagan would leave them with one less pro-ObamaCare vote on the Court, I wouldn’t be surprised to see President Obama withdraw her nomination.”

With the Court in recess, reporters and commentators who cover the Court have turned their attention to lower-court decisions that could eventually make their way to the Court.  On Tuesday, the en banc Seventh Circuit rejected a Second Amendment challenge to a federal law criminalizing gun possession by anyone convicted of a domestic violence misdemeanor, as reported by Sophia Tareen of the Associated Press (via Forbes).  The decision, according to Douglas Berman of Sentencing Law & Policy, highlighted how “Second Amendment jurisprudence is going to be very messy and very challenging” in the wake of McDonald.  Josh Blackman at his eponymous blog sees the opinion as proof that McDonald was an “epic failure” insofar as it failed to provide a standard of review for gun regulations; he disputes the observation by Chief Judge Frank Easterbrook, who wrote the opinion, that courts should grant wide deference to the “people’s elected representatives” to fill in the details left open by the Supreme Court.

In an opinion piece in the Guardian, Dan Kennedy suggests that this week’s Second Circuit decision striking down a Federal Communications Commission rule prohibiting “fleeting expletives” on the air could provide the first test of Kagan’s free speech views.  At Time, James Poniewozik predicts that if the ruling either is appealed to the Court or prompts the FCC to change its own rules, “the result should hopefully be a clearer sense of what the government can regulate.”

At the Volokh Conspiracy, Eugene Volokh announces that he has filed an amicus brief with other law professors in support of the respondents in Snyder v. Phelps, the funeral-protest case.   Lyrissa Lidsky summarizes another amicus brief, also filed by academics, at PrawfsBlawg.

Briefly:

• The Philadelphia Inquirer has a feature on the University of Pennsylvania Law School Supreme Court clinic’s role in Padilla v. Kentucky.
• The American Constitution Society recently held a panel discussion on the future of Miranda v. Arizona in light of the Court’s recent decision in Berghuis v. Thompkins holding that a suspect’s silence alone is inadequate to invoke his Miranda rights.  The video and an introduction are available at ACSblog.
• Prompted by the Supreme Court rulings in Heller and McDonald, conservative columnist Cal Thomas and Democratic strategist Bob Beckel debate gun rights in a USA Today forum.