Author: James Bickford

With Elena Kagan’s confirmation hearings nearly a month away, the analysis of her academic writings continues.  The Associated Press (via USA Today) describes Kagan’s views on judging as opposed to the model put forward by Chief Justice Roberts:  “when judges make decisions, they must take account of their values and experience and consider politics and policy, rather than act as robotic umpires.”  In the New York Times, Charlie Savage concludes that she “has been a strong supporter of… efforts to expand presidential power over domestic affairs.”  Nathan Koppel of the Wall Street Journal Law Blog reports on a speech that Kagan gave to Princeton alumni in 2003, in which she argued that the Court should defer to Congress when it acts to enforce the guarantees of the Fourteenth Amendment. At Slate, two history professors evaluate Kagan’s undergraduate thesis on socialism in New York City in the early twentieth century; they conclude that the thesis leaves “little doubt that Kagan would have become a superb historian if she had wanted to be one.”  Blogging for The Atlantic, Stuart Taylor Jr. parses Kagan’s Oxford master’s thesis for clues into her views on Graham v. Florida, in which the Court recently declared it unconstitutional to sentence juveniles to life without parole for non-homicide crimes.  In Taylor’s view, it is difficult to see how “Graham was any more ‘plausibly rooted in . . . the Constitution’ than the liberal Warren Court decisions that she criticized in her master's thesis.”

As the Kagan nomination enters its second week, the story continues to develop.  On Friday, Miguel Estrada, a prominent conservative lawyer whose nomination to the D.C. Circuit was blocked by Senate Democrats, offered a strong endorsement.  Estrada, who has known Kagan since they were first-year law students together, wrote in a letter to Senators Leahy and Sessions that “[i]f such a person, who has demonstrated great intellect, high accomplishments and an upright life, is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service.”  The BLT and the Washington Post’s PostPartisan Blog both note the Estrada letter; the Associated Press (via CBS News) reports on the support that Kagan has received from Estrada and other conservatives, including former Tenth Circuit Judge (and current Stanford Law professor) Michael McConnell.

It’s been a quiet weekend for the Supreme Court press: the candidates to replace Justice Stevens are well-established but not yet nominated; the end-of-term rush is still weeks away.  The Wall Street Journal and Newsweek report that Solicitor General Elena Kagan was interviewed on Friday for the coming vacancy; Judge Sidney Thomas of the Ninth Circuit had been interviewed the day before, as the Wall Street Journal’s Law Blog noted.  According to Alex Kozinski, chief judge of the Ninth Circuit (via the Wall Street Journal) Judge Thomas considers himself “not likely high on the list” of contenders and “was a little surprised that it was ‘the Full Monty’—that he interviewed with the president and vice president.”  In the National Review Online, Ed Whelan argues in two parts that the legal views of Judge Thomas resemble those of his famously liberal colleague, Judge Stephen Reinhardt of the Ninth Circuit.

The Court agreed to hear two cases this morning—Schwarzenegger v. Video Software Dealers Association and Ortiz v. Jordan, et al. The Schwarzenegger case, in which California is defending the constitutionality of a law prohibiting the sale of violent video games to minors, will address some of the same issues as United States v. Stevens, which the Court decided last week.  Greg Stohr of Bloomberg has early coverage, as do James Vicini of Reuters and Jesse Holland of the Associated Press.  The Court also refused to hear a suit by Michigan against Illinois involving attempts to stop the invasive migration of Asian carp into Lake Michigan.  Brent Kendall of Dow Jones provides coverage, as do Reuters, Bloomberg, and Jonathan Flesher of the Associated Press.  Tina Lam of the Detroit Free Press provides local context, as does Dan Egan of the Milwaukee Journal Sentinel.

With the Court returning from its April recess, attention is again being paid to the current Justices and the Court’s docket.  In the Washington Post, Robert Barnes previewed this morning’s argument in Christian Legal Society v. Martinez, involving the application of a non-discriminatory funding policy to a student group at a state university.  Warren Richey did the same in the Christian Science Monitor, as did Nina Totenberg on NPR.  Totenberg described Christian Legal Society as “a major case testing whether state colleges and universities can deny official status and subsidies to student groups that bar homosexuals and other groups from membership.”  (Last week, Lyle Denniston previewed the case for this blog here.) 

Although Justice Stevens’ announcement marked only the beginning of the process by which his successor will be nominated and confirmed, nomination speculation was nonetheless abundant this weekend.  Robert Barnes of the Washington Post suggested that President Obama would find it difficult to replace Justice Stevens’ ability to assemble a majority for his view, while Seth Stern opined in Slate that the days of consensus-building at the Court are long gone.  Also in the Washington Post, Scott Wilson sketched the political terrain – the pending midterm elections – against which the President will make his nomination.  Andrew Cohen of the Atlantic and Lyle Denniston of this blog suggested that Justice Kennedy would now wield even greater influence on the Court, while Ruth Marcus suggested in the Washington Post that the eventual nominee would push the Court further to the right.  In the New York Times, op-ed columnist Charles M. Blow reported on (and echoed) Justice O’Connor’s expressed preference for another female Justice and a nominee without prior judicial experience. Most media outlets agreed that Solicitor General Elena Kagan, Judge Diane Wood of the Seventh Circuit, and Judge Merrick Garland of the D.C. Circuit were the leading candidates for the post.

The news of Justice Stevens’ pending retirement has dominated the Supreme Court beat since it was first announced on Friday morning.  Erin Miller collected some of the early coverage here.  Nina Totenberg reported on the retirement Friday, and discussed it on Saturday (here and here).  Adam Liptak of the New York Times and Robert Barnes of the Washington Post expanded their coverage for the Saturday editions, while Warren Richey of the Christian Science Monitor added his. 

Since the announcement, there has been an outpouring of reflections on the legacy that Justice Stevens will leave behind.  The other Justices released statements praising their departing colleague, and a number of Stevens clerks recorded their memories of the Justice on the op-ed pages of the New York Times and the Washington Post (here and here).  The Washington Post collected other memories of Justice Stevens’ service here.  The National Law Journal established a blog, Speaking of Stevens, to which clerks, litigants and professors have been adding their thoughts, and created a separate page — The Stevens Legacy — with reflections on the Justice’s role in terrorism and criminal justice cases, as well as his commitment to access to the courts.

Two interviews with Justice Stevens appeared this weekend, renewing speculation over the timing and political consequences of his eventual retirement from the Court.  The Justice told Adam Liptak of the New York Times that although “there are still pros and cons to be considered.... I do have to fish or cut bait, just for my own personal peace of mind and also in fairness to the process.  The president and the Senate need plenty of time to fill a vacancy.”  Liptak reported that the Justice’s “calculus seemed to be weighted toward departure.”  And reporting from Fort Lauderdale, where Justice Stevens spends much of his time, Robert Barnes of the Washington Post spoke with Florida neighbors and acquaintances who described the Justice’s regular tennis and bridge games and his unassuming presence.  Justice Stevens told Barnes that he hoped that his earlier comment (to Jeffrey Toobin of the New Yorker) that he would decide on his plans for next year within thirty days “wasn’t being treated as a statute of limitations," and he repeated that he would surely retire while President Obama was still in office.