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Friday morning docket: Gunning for a debate

The blustery weather in Washington this morning will be nothing compared to the whirlwind that will surround the Supreme Court next week, when the justices take up another case testing the limits of gun control laws.

In 2008 the Court struck down a District of Columbia gun control law, saying it violated citizens’ individual right to bear arms under the Second Amendment. On Tuesday the Court will hear oral arguments in McDonald v. City of Chicago, which tests if that ruling applies to the states. Gun control laws in Chicago and across the country stand in the balance.

And in another closely-watched case, the Court will consider the constitutionality of the controversial “honest services” fraud criminal statute in a challenge brought by former Enron CEO Jeffrey Skilling. That case, Skilling v. U.S., will be heard Monday morning.

In other legal news:

Stevens out, Kagan in?: SCOTUSblog’s Tom Goldstein is making predictions about the Supreme Court lineup. He says Justice John Paul Stevens is likely stepping down, and Obama will nominate Solicitor General Elena Kagan to replace him (Oh look – we agree!). And, he says, Justice Ruth Bader Ginsberg will still be on the Court next term. (SCOTUSblog)

Record-breaking tenure: The National Law Journal’s Tony Mauro takes a look at stats from the Oyez Project to note at all the milestones Justice Stevens is approaching. For one, he’s almost the oldest justice ever. (BLT Blog)

One less case on the docket: Because a settlement was reached in the case, the U.S. Supreme Court will not decide whether the Federal Employees Health Benefits Act preempts a state court lawsuit against a government contractor that administers benefits provided in accordance with the statute. (Lawyers USA)

Constitutional debate: Sen. Chris Dodd wants to change the Constitution in order to undo the Supreme Court’s ruling in Citizens United v. FEC. (Hartford Courant)

Toyota tort debate: The Toyota situation could be making the argument for tort reform a much harder sell. (The Wall Street Journal‘s Law Blog)

Standoff on mortgage assistance: Members of Congress on both sides of the aisle are taking aim at the Obama administration’s struggling mortgage assistance program, with Republicans calling it a worthless exercise and Democrats saying it doesn’t go far enough. (Lawyers USA)

One comment

  1. As to “STEVENS OUT, KAGAN IN?,” Tom Goldstein’s correct that HLS profs, including those regarded as “conservative” (or what passes as that at leftist HLS), strongly supported Kagan for Solicitor General. But consider:

    1. There’s currently some anger, it seems deserved, at HLS about Kagan leaving the place in shambles. Due to the combined effect of her authoritarian personality and her risk-taking (possibly manic?) propensity, after raising a few hundred million dollars (admittedly an amazing feat), much of it earmarked for the new building, a couple years ago Dean Kagan apparently pretty much unilaterally decided to put the money in the endowment. Rather than put the money which would shortly need to be paid out for the building in safe, short-term instruments, she did the equivalent of taking it to Vegas. When the endowment tanked, something like a third of the money raised was lost — maybe more than $100 million. In other words, she raised big money, and budgeted and planned based on that money, and then gambled a bunch of it away. As a result of Kagan’s imprudent risk-taking and gambling with alumni donations, there have been massive staff layoffs and other cuts at the Law School, and the Law School had to take out a massive mortgage on the new building. As people have pushed for an explanation as to how the Law School could be so cash-strapped after recently raising so much money, administrators have tried to keep tight wraps on the specifics, but that’s what I’ve heard through the grapevine, and surely this subject would be poked into by Republican Senators if Kagan were nominated to the Court, given that Kagan’s record at Harvard Law School (which was clearly good in many respects) would be a key component of the case for her nomination.

    2. Even when Kagan’s nomination for Solicitor General was pending I saw commentary on the web about her injudicious interpersonal style. E.g., as dean she was notorious for her verbal abuse of underlings (screaming, profanity, even kicking on the doors of people she was screaming at) and the massive turnover of people she worked for who couldn’t take it or refused to take it. She apparently has a blue-collar background (e.g., former chain-smoker), and apparently she grew up around that sort of thing (thus making her swift rise in the legal profession all the more remarkable). While Kagan was still dean, and going through SG confirmation proceedings, people with knowledge of her injudicious temperment were likely not in a position to talk, but I would think that if Kagan is nominated to the Court and there’s a widescale FBI investigation, many people will relate stories of her abusive treatment of employees, it will be in the raw report, and then will be leaked to the press. Another illustration of Kagan’s poor judgment: I understand that while dean she personally took part in a student-run parody show which involved viscious attacks on unpopular students. If that’s correct, I wonder why we need such a person on the Supreme Court.

    3. Nominating Kagan would open up a can of worms I doubt Obama wants to open: there’s loads of detail available on the web about how a few years ago Kagan covered up a ghostwriting/plagiarism scandal involving her mentor, Larry Tribe (just google “Kagan Tribe ghostwriting”), who was also a mentor of Obama, who apparently was a Tribe ghostwriter when he was a student. Is it really so important for Obama to get Kagan on the Court that he’d want to risk a Senate investigation into whether she helped cover up a scandal involving a liberal legend who’s despised by many conservatives?

    4. Even if Kagan didn’t do anything wrong in handling the Tribe investigation, just the mention of Tribe would be politically controversial. Conservatives have long detested the idea of Tribe or anyone remotely like him being nominated to the Supreme Court. Given that, why in the world would a president who’s a former Tribe ghostwriter want to appoint to the Court another former Tribe ghostwriter? Wouldn’t that virtually invite conservatives to focus part of the hearing on lightning-rod Larry Tribe? (That has a nifty ring, “Lightning-Rod Larry.”) I personally don’t think Kagan would be a super-liberal justice (I think she’d be a lot more like Breyer than, say, Brennan or Marshall). But her close connection to Tribe, and her lack of any real paper trail (no judicial experience and limited publications), could reasonably be used by opponents to paint her as a radical liberal. If Obama wants a fight, he should go for a clear, proven liberal, not someone who’s probably relatively moderate but who given her close connection to Tribe would nonetheless be painted as a covert super-liberal without a paper trial who Obama’s trying to sneak into a Supreme Court seat.

    With all due deference to Tom Goldstein’s experience and sense of the politics involved, I trust and expect that Obama will do better than a Justice Kagan.

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