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Monthly Archives: May 2010

SCOTUS: No life imprisonment for juveniles in non-murder cases

Sentencing juveniles to life in prison without parole for non-murder crimes is unconstitutionally cruel and unusual, the U.S. Supreme Court has ruled. That opinion in Graham v. Florida is one of four case dispositions by the Court today.

The Court also dismissed a similar case, Sullivan v. Florida, as improvidently granted. That case also involved a juvenile who was sentenced to life without parole for a non-murder charge, but it was not consolidated with Graham because of the differences in facts and procedural history.

The court also upheld a law authorizing the federal court-ordered civil commitment of prisoners beyond their prison terms if they are deemed “sexually dangerous persons” in U.S. v. Comstock.

And finally in Abbott v. Abbott, the Court ruled that, under the Hague convention, a parent has a “right of custody” to prevent the other parent from taking their child out of the country where he or she lives.

Much more on these cases to come on this blog and on Lawyers USA online.

Supreme disasters

DC Dicta’s sister blog The Michigan Lawyer picked up on an interesting Supreme Court list published by The Week: “The 5 most disastrous Supreme Court nominees.”

Who are these unfortunate and infamous doomed Supreme Court nominees?

Let’s begin with Harriet Miers, President George W. Bush’s former White House counsel who drew the scorn of Senate members when she submitted questionnaire answers that they deemed “incomplete to insulting.” Bush withdrew the nomination after three weeks. He had much better success with his next two nominees: Chief Justice John G. Roberts, Jr. and Justice Samuel Alito.

The Week‘s next confirmation disaster is President Ronald Reagan’s pick Douglas Ginsburg, the D.C. Circuit Judge who withdrew in 1987 after reports that he smoked pot with his students at Harvard Law School. Since then, “inhaling” revelations have become less toxic to political careers, thanks to admissions by folks like former Vice President Al Gore, former House Speaker Newt Gingrich and President Obama.

Then there is G. Harrold Carswell, President Nixon’s nominee and believer in white supremacy.

Next there’s President Cleveland’s nominee Lucius Q.C. Lamar, who was old (62) and naughty (accused of sexual misconduct).

And finally there is Reuben H. Walworth, who was unsuccessfully nominated not once, not twice, but three times by President John Tyler.

It’s interesting that Robert Bork – whose spectacular failure to win confirmation by the Senate resulted in the introduction of the verb “bork” into the American vernacular – is not on that list.

And the next solicitor general will be…

With all the hubbub over the nomination of Elena Kagan to the Supreme Court, most people forgot that – if confirmed – Kagan’s new job will leave the Obama administration with yet another vacancy: solicitor general.

So who will get that nod?

Folks at the White House say they haven’t even thought about that yet. But according to an Atlantic piece (via the WSJ’s Law Blog), there are already clues that Don Verrilli, an associate White House counsel, could get that nod.

The former associate deputy attorney general recently moved from Main Justice to the White House to take his current position.

In any other universe that would be a demotion for someone with Verrilli’s resume, the Atlantic‘s Marc Ambinder notes. But here, it seems like the wheels were being put in motion to prep a successor to the SG:

Verrilli knew he was paying a transient occupancy tax: the White House needed a better relationship with the Justice Department, and Verrillii, a low-key, get-along guy, was just the ticket. Verrilli spent years at Jenner and Block in Washington, representing a diverse array of clients. Copyright law is one of his specialties; he’s known as the “guy who killed Grokster” on behalf of Viacom. Verrillii has argued frequently before the Supreme Court.

Republicans ramp up Kagan criticism

And here we go!

After making nice for about 24 hours after President Obama announced the nomination of Elena Kagan to the Supreme Court, Republicans grew much more vocal in their criticisms of the nominee yesterday.

Sen. Jeff Sessions, ranking member on the Judiciary Committee,  told reporters yesterday that Kagan “has thin experience, has had some very aggressive political views in her life.”

Among those views, GOP senators said, is Kagan’s opposition to military recruiters when she was dean of Harvard Law School. Kagan said she believed the military’s “Don’t as, don’t tell” policy violated the school’s nondiscrimination pact.

“It’s going to be critical that whoever puts on the robe of the Supreme Court justice, that they be committed to following the law, even if they don’t like it, even if they wish it had been different,” Sessions said.

Sessions said senators must carefully scrutinize Kagan’s record before voting on the nominee. But Sen. Jim Inhofe isn’t even waiting that long – he’s already stated his opposition to Kagan.

“If I don’t believe that someone’s qualified for a lower-level position, then how could they be qualified for the Supreme Court?” Inhofe said, referencing his ‘no’ vote on Kagan’s confirmation as solicitor general last year.

GOP senators: SG support doesn’t ring Supreme

Supreme Court nominee Elena Kagan will begin meeting with members of the Senate tomorrow, an informal first step in her confirmation process. But many lawmakers are not waiting until tomorrow to comment about the nominee – particularly the seven senate Republicans who voted to confirm Kagan as solicitor general.

Seven Republicans voted in favor of Kagan’s bid to be the administration’s top lawyer last year: Senate Judiciary Committee members Sens. Orrin Hatch, Jon Kyl and  Tom Coburn, and fellow Sens. Susan Collins, Judd Gregg, Richard Lugar, and Olympia Snowe.

By the time President Obama had introduced his nominee yesterday morning, Hatch had issued a statement that seemed to dismiss the praise of Kagan based on her professional background. “Any Supreme Court nominee should have an impressive resumé,” said Hatch.

Don’t read too much into his solicitor general vote either, Hatch said. “Her previous confirmation, and my support for her in that position, do not by themselves establish either her qualifications for the Supreme Court or my obligation to support her,” Hatch said.

Coburn promised to keep “an open mind” on Kagan as senators vet her. But he also distinguished his previous vote. “This is a totally different deal,” Coburn said. “Nobody should take that to mean I think she’s acceptable for the Supreme Court … . They’re not comparable positions. This is a lifetime appointment to the highest court in the land.”

Kyl echoed the sentiment. “As I made clear when I supported her confirmation as Solicitor General, a temporary political appointment is far different than a lifetime appointment to the Supreme Court,” Kyl said.

Lugar also said his vote to confirm Kagan as solicitor general is not an indication of how he will vote on her nomination to the high court.

Collins remained noncommittal in her statement. “Ms. Kagan has an impressive resume of dedicated public service and strong legal credentials but she does not have extensive writings by which one can assess her judicial philosophy,” Collins said. “In the coming weeks, I will closely examine her record as U.S. Solicitor General. I will also follow the Judiciary Committee hearings so that I can better assess how she might approach issues as a judge.”

Snowe took the same approach. “I look forward to learning more about her experience and expertise, and to meeting with her to discuss a variety of issues, including how she would characterize her judicial philosophy,” Snowe said.

Gregg didn’t mention his previous vote in favor of Kagan at all. “I congratulate Solicitor General Elena Kagan on being nominated to the United States Supreme Court and look forward to carefully reviewing her record and qualifications for this position,” Gregg said.

Obama on Kagan

President Obama’s campaign website Organizing for America has taken to YouTube with a video of  Obama explaining his choice of Elena Kagan to replace retiring Supreme Court Justice John Paul Stevens. His remarks are nearly identical to those he gave the morning in announcing his choice.

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Obama: Kagan addition to Court could spur baseball subway rivalry

In announcing his nomination of Solicitor General Elena Kagan to the Supreme Court this morning, President Barack Obama praised Kagan’s “openness to a broad array of viewpoints, her habit of understanding before disagreeing, her fair-mindedness and skill as a consensus builder.” (See full story on the announcement here from Lawyers USA)

He said Kagan, if confirmed, would have to use those attributes in more than just her jurisprudence.

“This appreciation for diverse views may also come in handy as a die hard Mets fan serving along side her colleague-to-be, Yankees fan Justice Sonia Sotomayor, who I believe has ordered a pinstriped robe for the occasion,” Obama said, as Kagan, Vice President Joe Biden and spectators in the White House East Room laughed.

Facts and figures on Kagan

We know Solicitor General Elena Kagan is President Obama’s pick to replace retiring Justice John Paul Stevens on the Supreme Court. (The official announcement is coming later this morning from the White House).

Here’s a list of some Kagan tidbits that you may not know:

- She celebrated her 50th birthday on April 28.

- Supreme Court Justice Thurgood Marshall, for whom Kagan clerked in the late 1980s, nicknamed her “Shorty.”

- She played softball on the faculty team at the University of Chicago Law School.

- She’s an avid poker player.

- She served with Obama on the faculty of the University of Chicago Law School.

- This is not her first judicial nomination. President Clinton nominated her for a seat on the D.C. Circuit Court of Appeals, but the nomination was never brought to a vote.

- She worked briefly in the private sector at the Washington office of Williams & Connolly.

- She served as special counsel to the Senate Judiciary Committee during the confirmation process for Supreme Court Ruth Bader Ginsburg.

Much more on Kagan here on Lawyers USA online.

It’s Kagan

This morning President Barack Obama will announce that Solicitor General Elena Kagan is his pick to replace retiring Supreme Court Justice John Paul Stevens.

Obama is scheduled to make the announcement at the White House at 10 a.m. More to come on this blog and on Lawyers USA online.

Friday morning docket: Next week will be Supreme

All will be quiet next week at the U.S. Supreme Court as the justices continue their post-argument season recess.

But we do expect some Court-related activity at the White House early next week, when President Barack Obama is expected to name his pick to replace retiring justice John Paul Stevens. All oddsmakers are saying it’ll be Solicitor General Elena Kagan who gets the nod, although Obama has also interviewed federal appellate Judges Sidney Thomas, Merrick Garland and Diane Wood.

Meanwhile, lawmakers are focused squarely on financial reform. But the Supreme Court is creeping into that discussion too. Take, for example, Sen. Arlen’s Specter’s bid to add an amendment to the bill witch would allow for third-party liability in securities fraud cases by overturning the U.S. Supreme Court’s ruling in Stoneridge Investment Partners v. Scientific-Atlanta Inc.

In other news,

Putting on the brakes: Lawmakers are working on a bill that would impose far-reaching safety standards on the auto industry. (New York Times)

Out of the park: Justice John Paul Stevens really did see Babe Ruth’s famed called shot. He doubted his memory briefly, but then put one of his law clerks on the case to verify. (Chicago Sun-Times)

Judge delayed? The Senate judiciary Committee’s GOP members delayed action on 9th Circuit nominee Goodwin Liu for at least a week. (The Hill)

‘Honest’ waiting game: Solicitor General Elena Kagan said the Supreme Court’s upcoming rulings on the “honest services” fraud cases will effect  the Justice Department’s approach to a wide range of criminal prosecutions. (Wall Street Journal)

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