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Monthly Archives: August 2010

Monday status conference: the Empire Court (access required)

Now that Justice Elena Kagan has joined the U.S. Supreme Court, might the new theme song at One First St., NE be “Empire State of Mind” by Jay-Z and Alicia Keys?

Could be, since a majority of the justices on the high court can call themselves natives of New York State.

Chief Justice John G. Roberts, Jr. was born in Buffalo, N.Y. Although he moved with his family to Indiana when he was in grade school, he remains a Buffalo Bills fan.

Four other justices have strong ties to New York City. Justice Ruth Bader Ginsburg was born and raised in Brooklyn. Justice Antonin Scalia was born in Trenton, N.J., but he grew up in Queens. Justice Sonia Sotomayor hails from the Bronx, and is a avid Yankees fan.

Despite residing for some time in Massachusetts at the helm of Harvard Law School – at her confirmation hearings she was introduced by Massachusetts Sens. John Kerry and Scott Brown – Kagan hails form Manhattan and roots for the Mets.

To play on Jay and Alicia’s lyric: “The Supreme Court – marble palace where dreams are made of; There’s nothing you can’t do.”

In other news:

Important questions: Will Justice Kagan wear a frilly little neck piece with her robe? This and other pressing questions, answered! (Slate)

Busy schedule: In addition to having active Supreme Court practices and litigating the Proposition 8 case up the appellate system, Ted Olson and David Boies will also co-chair a new ABA Task Force on the Preservation of the Justice System. (ABA Journal)

Roberts v. Kagan? Will we see an ongoing Supreme Court battle between Kagan and Roberts? (WSJ’s Law Blog)

McConnell not a fan of Franken’s shtick (access required)

There was some drama during yesterday’s final hours of debate on the nomination of Elena Kagan to the Supreme Court.

Sen. Al Franken, an alum of late night comedy television, was the presiding officer over the Senate chamber as Senate Minority Leader Mitch McConnell was speaking about Kagan. During McConnell’s roughly 10-minute long address, Franken was reportedly mocking the top GOP senator’s remarks, gasping, rolling his eyes and shifting in his seat.

McConnell was not amused, according to The Washington Post’s Politics and Policy blog. When he finished speaking, McConnell approached Franken at the Senate’s main desk and sternly said: “This isn’t ‘Saturday Night Live,’ Al.”

According to Politico, Franken later apologized to McConnell.

“The leader thought I was disrespectful while he was giving his speech on General Kagan,” Franken said in a statement. “He is entitled to give his speech with the presiding officer just listening respectfully. I went directly to his office after I was done presiding to apologize in person. He wasn’t there, so I’ve sent him a handwritten note.”

Sen. Bob Corker summed up the episode: “It’s been a little weird here towards the end.”

Kagan to be sworn in Saturday (access required)

Less than 48 hours after her Senate confirmation, Elena Kagan will be sworn in at the U.S. Supreme Court, becoming the Court’s 112th justice.

Yesterday, the Court released the following details about Saturday’s ceremony:

“Elena Kagan will be sworn in as the 100th Associate Justice of the Supreme Court on Saturday, August 7, at 2 p.m. at the Supreme Court of the United States,” the Court’s statement reads. “Chief Justice John G. Roberts, Jr., will first administer the Constitutional Oath in a private ceremony in the Justices’ Conference Room attended by members of the Kagan family.  The Chief Justice will then administer the Judicial Oath in the West Conference Room before a small gathering of Elena Kagan’s family and friends.”

But the ceremonies don’t end there, folks. Kagan will also have a formal investiture ceremony in October, when all the justices return to Washington for oral arguments. That will take place Oct. 1 at a special sitting of the Court in the courtroom.

Was the Prop 8 judge speaking to Justice Kennedy? (access required)

Yesterday’s federal district court ruling striking down California’s voter-imposed ban on same-sex marriage began what will surely be a long legal battle leading to the U.S. Supreme Court.

So did Judge Vaughan R. Walker, in his 136-page opinion striking down the law as violative of Californians’ equal protection and due process rights, lay out his factual and legal analysis in a way to appeal to Justice Anthony Kennedy?

Walker “is speaking to Justice Kennedy,” Doug NeJaime, an associate professor at Loyola Law School, Los Angeles told The New York Times of yesterday’s ruling.

According to NeJaime and other legal experts, there is a particular focus on Kennedy for many reasons. As the Court’s so-called “swing voter” cases that split the Court along ideological lines, the final decision may ultimately rest with Kennedy. Furthermore, in cases where the Chief Justice John G. Roberts, Jr. is not in the majority, Kennedy has the extra responsibility of assigning opinions when he is in the majority – meaning that if the Court ultimately upholds Judge Walker’s analysis, Kennedy could assign the duty of writing that opinion to himself.

Perhaps Walker had this possibility in mind when he wrote his opinion, which applied the “rational basis” test to the law – the lowest constitutional hurdle a law can face – and found that it still did not pass. A similar approach was taken by Kennedy himself in the 2003 Supreme Court case Lawrence v. Texas, where the Court struck down a Texas law criminalizing sodomy, holding it violated the due process clause. By laying out the California case in a way that allows the Court to use the approach already taken by Kennedy, Walker may have been trying to add some extra sticking power it his ruling, experts said.

Legal scholars admit, however, that there is really no way of knowing what will happen once the case reaches One First Street, NE.

“I have no way of predicting how [Kennedy]’d come down on this and I don’t think he does, either, at this point,” Jesse H. Choper, a professor of law at the University of California, Berkeley, told the Times.

Ginsburg: I’m staying put! (access required)

Listen up everyone: after Elena Kagan’s confirmation, there will be three – count ‘em, three! – women on the U.S. Supreme Court.

Despite the whispered retirement rumors that have been floating around for years, Justice Ruth Bader Ginsburg said she isn’t going anywhere for the foreseeable future.

“To me, it’s one of the most exhilarating developments,” Ginsburg told the Associated Press’ Mark Sherman of the prospect of having three women on the Court for the first time in history.

Ginsburg, who is now the Court’s oldest justice at 77 after the recent retirement of 90-year-old Justice John Paul Stevens, revealed the reason why she went to work the day after her husband of 56 years, Martin, passed away in June: her children persuaded her to. And, she said, her husband would have wanted her there. “I knew he would,” Ginsburg said.

And although she is friends and opera companions with her ideologically-opposed benchmate Justice Antonin Scalia, she poked a little fun at his in-chambers décor, which includes things like hunting trophies.

“He would not put up any of my art,” Ginsburg told Sherman, gesturing toward the paintings that hang on the walls in her office, “and I wouldn’t put up with his elk or whatever it is.”

Kagan debate underway (access required)

Yesterday the Senate began floor debate on the nomination of Solicitor General Elena Kagan to the U.S Supreme Court. And though she is expected to win confirmation by week’s end – and without any serious attempt by Republicans to block or delay the vote before the Senate recesses for the summer – many GOP senators still used their time on the floor to criticize President Obama’s high court pick.

The most vocal opponent was Ranking Senate Judiciary Committee member Sen. Jeff Sessions, who called Kagan “an activist, liberal, progressive, politically-minded judge who will not be happy just deciding cases, but will seek to advance her causes under the guise of judging.”

Judiciary Committee Chairman Sen. Patrick Leahy joined Democrats in heaping praise on Kagan. Leahy also took issue with Republicans who listed Kagan’s praise of the late Justice Thurgood Marshall, for whom she clerked, as a reason to oppose her.

“He was a giant,” Leahy said of Marshall. “And if he was here, I would hope that the senators would reexamine their notions of him.”

Last year, Justice Sonia Sotomayor won the votes of eight Republicans in the largely partisan vote confirming her to the Court. So far, five GOP senators have voiced support for Kagan. Nine have yet to indicate how they will vote.

One GOP lawmaker who will vote ‘yea’ is Sen. Lindsey Graham. Yesterday Graham said the Advice and Consent Clause of the Constitution does give senators the right to oppose a nominee solely because of a difference in ideology. Graham noted that lawmakers in the past have put ideology aside in confirmation votes – Justice Ruth Bader Ginsburg was confirmed on a 97-3 vote, and Justice Antonin Scalia was confirmed unanimously.

“Not that long ago this body, without a lot of fussing and fighting, could put on this Court two people who could not be more different,” Graham said, lamenting the partisan turn confirmations hearings have taken in recent memory. “Something is going on.”

On the Court for life … actually, even longer (access required)

We all know that the position of Supreme Court justice is a lifetime appointment. But as it turns out, many justices of the Court have remained together even beyond their lifetimes.

Thirty late Supreme Court justices have final resting places within a short radius of one another in the Washington D.C. area, reports the Associated Press. And 12 of those justices are all buried in the same place: Arlington National Cemetery in Virginia. Most are within a stone’s throw of one another, and several even have adjoining headstones.

“The court always had a sense of collegial togetherness,” said David N. Atkinson, a professor at the University of Missouri-Kansas City, told the AP’s Jessica Gresko.

The justices who are situated at Arlington alongside each other – as if on a bench – were also seated on the Court together: Justices William J. Brennan, Jr., Potter Stewart, Thurgood Marshall and Harry A. Blackmun. Their Chief Justice, Warren Burger, is buried one row ahead. Other justices interred at the cemetery include former president and Chief Justice William Howard Taft, Justice William O. Douglas, and Chief Justice William H. Rehnquist, who in 2005 was the last to be buried there. Martin Ginsburg, the late husband of Justice Ruth Bader Ginsburg, was buried there in June, leading to speculation that the justice may also be laid to rest there.

Just a short distance from Arlington, 18 other justices are buried in cemeteries in Washington, DC and Maryland.

Monday status conference: While Kagan advances, other Obama picks lag (access required)

This week the full Senate will take up the nomination of Supreme Court nominee Elena Kagan. And although she is expected to easily win confirmation on a vote that will largely fall along partisan lines, a few lawmakers are expected to break party ranks – including Sen. Ben Nelson, the first Democrat to announce his intention to vote against Kagan.

“I have heard concerns from Nebraskans regarding Ms. Kagan, and her lack of a judicial record makes it difficult for me to discount the concerns raised by Nebraskans, or to reach a level of comfort that these concerns are unfounded,” Nelson said in a statement Friday.

Meanwhile, another GOP Senate member – Sen. Judd Gregg – announced that he would vote for Kagan, bringing the latest tally of Republicans supporting the candidate to five.

While Kagan’s nomination has proceeded without much delay, the same cannot be said for President Obama’s non-Supreme Court judicial picks.

Many of Obama’s nominees for federal trial and appellate courts have languished in the Senate, facing a bottleneck effect caused both by Obama’s slow start in naming nominees and Senate Republicans’ efforts to block votes on the nominees. And GOP lawmakers admit that they are paying Senate Democrats back for stalling former President Bush’s nominees.

“My perspective on the 4th Circuit covers a little longer period of time,” said Senate Republican Leader Mitch McConnell after blocking 4th Circuit nominee Judge James Wynn from getting a vote on the Senate floor two weeks ago.

In other legal news,

Candid Scalia: During a speech in Montana, Justice Antonin Scalia was in rare form, calling the Supreme Court confirmation process “absurd political theater,” the State of the Union address  a “silly spectacle,” requesting the removal of a crying baby from the auditorium and asking news photographers to stop taking his picture. During his remarks he also said: “Nothing that I learned in my courses at Harvard law school, none of the experience I acquired practicing law qualifies me to decide whether there ought to be, and hence is, a fundamental right to abortion or assisted suicide.” (Washington Post)

Ginsburg’s foreign view: In an equally candid address, Justice Ruth Bader Ginsburg chastised Senate Judiciary Committee members for suggesting that looking to foreign law is a no-no. “[It’s] very wrong…to charge that citing foreign law is a recent heresy advanced by liberal activist judges in pursuit of their political preferences,” Ginsburg said. (SCOTUSblog)

Cracking the disparity: Congress has sent a bill to the desk of President Barack Obama that would cut the disparity between federal sentences for crack cocaine and powder cocaine offenses. (Lawyers USA)

‘Red flags’ in court: The Federal Trade Commission has urged the D.C. Circuit to reverse a district court ruling that held that regulations designed to combat identity theft don’t apply to attorneys. (Lawyers USA)