The confirmation hearings for Solicitor General Elena Kagan, nominated to replace Justice John Paul Stevens on the Supreme Court, are currently scheduled to start on Monday, June 28. We will, of course, offer extensive coverage, including some liveblogging.
Just today, Vanderbilt law professor Brian Fitzpatrick — a former law clerk to Justice Scalia and a former counsel to Senator John Cornyn (R-TX) — issued an enthusiastic endorsement (PDF) of Kagan, praising her as “a person of utmost integrity, extraordinary legal talent, and relentless generosity.” Such sentiments have been heard from many conservative corners.
So, with Lady Kaga’s confirmation more or less assured, let’s start thinking about what we can expect from a Justice Elena Kagan. Specifically, how will she handle petitions for certiorari, the requests filed by litigants who want the Court to hear their cases?
In other words: Will Justice Kagan plunge into the cert pool? And should she?
[T]he Supreme Court’s two newest justices have decided, at least temporarily, to stick with the Court’s clerk-pooling arrangement…. [B]oth Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. said they will stay in the “cert pool,” as it is called, for the current term.
Roberts said he will participate on a “year-to-year basis,” and Alito said the same….
The use of the certiorari pool does, by the way, increase the power of law clerks at the Court:
In a 1997 speech when he was in private practice, Roberts said he found the pool “disquieting” in that it made clerks “a bit too significant” in determining the Court’s docket. During his confirmation hearings in January, Alito said he was “aware of the issue” surrounding the pool. He added: “We cannot delegate our judicial responsibility. But . . . we need to find ways, and we do find ways, of obtaining assistance from clerks and staff, employees, so that we can deal with the large caseload that we have.”
One could quibble with Justice Alito’s description of the SCOTUS caseload as “large.” The Court hears fewer than 100 cases each Term, and the number has been decreasing over the years. And the cert pool may actually be contributing to that decline, as Lyle Denniston suggests.
But we heart Justice Alito, so we won’t quibble.
Another consequence of the pool:
In their new book on the Court’s clerks, Sorcerers’ Apprentices, authors Artemus Ward and David Weiden chart the history and impact of the pool. At the same time the pool has increased the power of clerks in the gatekeeping function, they say, it has made clerks less candid and more timid in their recommendations. “The pool writers are going to be less candid than they would be with their own justice,” says Ward in an interview. “It has a chilling effect.”
It would be interesting if another justice were to join Justice Stevens in declining to participate in the cert pool. But would that make a clerkship with that justice less desirable? Clerks to that justice would have to spend more of their time doing mind-numbing cert review work, getting down into the factual weeds of lower-court records — instead of working on the sexy, pure legal issues presented by merits cases.
Maybe there’s a collective action problem here. Who would be willing to go first? Cf.Harvard ending early admissions.
Interesting — but not our problem. Shrug. Courtside by Tony Mauro: Pool Party [Legal Times]
Commentary: The Court’s caseload [SCOTUSblog] Cert Pool [Wikipedia]
The holiday season is upon us, and yet again, you have no idea what to get for the fickle lawyer in your life. We’re here to help. Even if your bonus check hasn’t arrived yet, any one of the gifts we’ve highlighted here could be a worthy substitute until your employer decides to make it rain.
We’ve got an eclectic selection for you to choose from, so settle in by that stack of documents yet to be reviewed and dig in…
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past six years. You can reach them by email: firstname.lastname@example.org.
We currently have a very exciting and rare type of in-house opening in China at one of the world’s leading internet and social media companies. Our client is looking for an IP Transactional / TMT / Licensing attorney with 2 to 6 years experience. The new hire will be based in Shenzhen or Shanghai. Mandarin is not required (deal documentation will be in English) but is preferred. A solid reason to be in China and a commitment to that market is required of course. This new hire will likely be US qualified (but could also be qualified in UK or other jurisdictions) and with experience and training at a top law firm’s IP transactional / TMT practice and could be currently at a law firm or in-house. Qualified candidates currently Asia based, Europe based or US based will be considered. The new hire’s supervisors in this technology transactions in-house team are very well regarded US trained IP transactional lawyers, with substantial experience at Silicon Valley firms. The culture and atmosphere in this in-house group and the company in general is entrepreneurial, team oriented, and the work is cutting edge, even for a cutting edge industry. The upside of being in an important strategic in-house position in this fast growing and world leading internet company is of the “sky is the limit” variety. Its a very exciting place to be in China for a rising IP transactional lawyer in our opinion, for many reasons beyond the basic info we can share here in this ad / post. This is a special A+ opportunity.
If your firm is in ‘go’ mode when it comes to recruiting lateral partners with loyal clients, then take this quiz to see how well you measure up. Keep track of your ‘yes’ and ‘no’ responses.
1. Does your firm have a clearly defined strategy of practice groups that are priorities of growth for your office? Nothing gets done by random chance, but with a clear vision for the future. Identify the top practice areas for which you wish to add lateral partners. Seek input from practice group leaders and get specifics on needs, outcomes, and ideal target profiles.
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