Tuesday round-up

By Matthew Scarola
on Aug 3, 2010 at 10:50 am

The Senate convened this morning to begin consideration of Elena Kagan’s nomination to the Supreme Court. According to the Caucus Blog of the New York Times, Kagan is expected to garner more votes than Justices Thomas and Alito did. A vote is expected sometime later this week. The Atlanta Journal Constitution, the AP (via NPR), and the Liveshots blog at Fox News all have coverage.

Some Senate Republicans continue to voice objections to Kagan’s nomination. The Top of the Ticket blog of the Los Angeles Times has the full text of a letter that Republican Senator Jeff Sessions wrote to the Senate Judiciary Committee yesterday; among other things, Sessions warns that “Ms. Kagan’s lack of legal experience should be of significant concern to any Senator.”

In yesterday’s round-up, we linked to coverage of Justice Ginsburg’s recent remarks to the International Academy of Comparative Law.   The editorial board of the New York Times praises Ginsburg’s “on-the-money speech” and denounces what it characterizes as the “xenophobia” displayed by some Senators during Kagan’s Senate Judiciary Committee hearings.

At the Politics and Policy blog of U.S. News & World Report, Paul Bedard writes that the “[NRA] is stepping up [its] campaign to shoot down” Kagan’s nomination. That campaign appears to face an uphill battle. CNN reports that a new poll suggests that most Americans would like for the Senate to confirm Kagan, and that Kagan has “virtually the same amount of support that the public gave [now-Justices Alito and Sotomayor] just days before they were confirmed by the Senate.”

In a piece highlighted in yesterday’s round-up, Slate’s Dahlia Lithwick discusses whether there will “be friction between [Chief Justice Roberts] and Elena Kagan” if Kagan is confirmed. Sentencing Law and Policy’s Doug Berman excerpts Lithwick’s article, noting that if a “battle” is forthcoming, it will likely “be waged … for 25 years and probably longer” absent “illnesses or surprisingly early retirement….” The AP’s Jessica Gresko (via the Los Angeles Times) focuses on a different kind of relationship among the Justices; referring to the twelve Justices “buried at Arlington [National Cemetery], and another [eighteen]…at other nearby cemeteries,” Gresko writes that Justices “[stick] together—even in death.”

Coverage also continues of the Court’s decisions last Term. The AP’s Jesse J. Holland (via the Washington Post) discusses the Court’s recent Miranda jurisprudence, writing that “experts call [it] an attempt to pull back some of the rights that Americans have become used to over recent decades.” Kent Scheidegger of the Crime and Consequences Blog criticizes the article for “exaggerat[ing] the extent of the changes….” In an article reprinted at How Appealing, Lawrence Hurley of the Daily Journal also examines the impact of the three recent Miranda cases—Berghuis v. Thompkins, Florida v. Powell, and Maryland v. Shatzer; according to some criminal lawyers, the cases “are unlikely to have much impact on the ground.”

Tom Hamburger of the Los Angeles Times reports that “business and conservative groups are preparing a flood of campaign money” following the Court’s decisions in Citizens United v. Federal Election Commission and its 2007 decision in Federal Election Commission v. Wisconsin Right to Life. According to one reports, fifteen organizations have budgeted a combined total of over three hundred million dollars to defeat Democratic congressional candidates; the power of that money, Hamburger explains, “ is magnified because it will be concentrated in a relatively small number of swing states and districts.” (Thanks to How Appealing for the link.)

The editorial board of the Los Angeles Times discusses a legislative response to United States v. Stevens, in which the Court “struck down a law making it a crime to sell depictions of cruelty to animals.” The board argues that the Act, the Prevention of Interstate Commerce in Animal Crush Videos Act of 2010, will present the Court with “the uncomfortable task of invalidating a law rewritten to comply with one of its decisions”; however, the board emphasizes, the Court “shouldn’t shrink from that responsibility.”

Detainee-related litigation is also attracting attention. SCOTUSblog’s Lyle Denniston reports that Omar Khadr, who has been in U.S. military custody since he was fifteen years old, yesterday “asked the Supreme Court to block his war crimes trial, scheduled to start Aug. 10 before a military commission….” According to the AP (via the Los Angeles Times), the trial would be the first at Guantanamo Bay during Obama’s presidency.

Briefly:

• A court released Conrad Black on bail following the Supreme Court’s decisions in the “honest services” cases. The WSJ Law Blog’s Ashby Jones has excerpts from Black’s reflections on the time he spent in prison.
• Also at the WSJ Law Blog, Nathan Koppel reports that “the Fifth Circuit will [today] consider the legality of a race-conscious admissions system at the University of Texas in Austin.” The case is a follow-up to the Court’s 2003 decision in Grutter v. Bollinger, which upheld the University of Michigan Law School’s “plus factor” policy.
• In his Sidebar column for the New York Times, Adam Liptak describes the cert. petition of death-row inmate Cory R. Maples, who missed the time to file an appeal when the mailroom at the firm that was providing pro bono representation returned copies of a court’s ruling unopened.