Supreme Court

This morning I attended a very interesting panel discussion sponsored by the Yale Law School Center for the Study of Corporate Law, Citizens United: Mountain or Mole Hill? Because the talk was sponsored by my rather left-leaning alma mater, I expected the answer to the question presented to be “Mountain” — and not just any mountain, but Mount Doom.

I was pleasantly surprised. The deeply thoughtful discussion pointed more in the direction of “Mole Hill.” This was especially surprising given the liberal bona fides of the three star panelists:

  • Floyd Abrams, the longtime Cahill Gordon partner and celebrated First Amendment lawyer, who argued in the case for Senator Mitch McConnell (as amicus curiae, in support of Citizens United);
  • Heather Gerken, the J. Skelly Wright Professor of Law at Yale Law School, and a leading scholar of election law and voting rights; and
  • Samuel Issacharoff, the Reiss Professor of Constitutional Law at NYU School of Law, and an expert in voting rights and civil procedure.

Both Professors Gerken and Issacharoff worked on the Obama campaign. And we all know what President Obama thinks of Citizens United.

But what did this eminent trio of panelists have to say about the case?

double red triangle arrows Continue reading “Why Citizens United Is Not the End of the World”

Now that the fabulous Elena Kagan has been officially nominated to succeed Justice John Paul Stevens on the Supreme Court, some folks have been wondering: What does the future hold for the unsuccessful shortlisters? Let’s consider them, one by one.

1. Judge Merrick Garland (D.C. Cir.): The brilliant D.C. Circuit judge — practically a “tenth justice” himself, due to his ridiculous success in feeding his clerks to the Court — could be considered for a future vacancy. He’s young enough, at 57, and the Garland clerk mafia is strong, with representation in the White House counsel’s office and other D.C. power centers.

Garland is the SCOTUS candidate who would be most appealing to conservatives, so his chances of appointment are directly proportional to Republican representation in the Senate. My advice for Judge Garland: vote Republican.

2. Judge Sidney Thomas (9th Cir.): The well-regarded Ninth Circuit judge’s appearance on Obama’s short list surprised some, but it really shouldn’t have. Sid Thomas is very smart and very liberal, and he would add diversity to the Court (as a Montanan, non-Ivy Leaguer, and Protestant).

“Sidney Thomas is being thrown around in case [Justice Anthony M.] Kennedy steps down in the next two years,” a D.C. insider involved in the nomination process told me. “As far as we can tell, Obama likes [Sid Thomas] and wants to introduce him as a possibility to make him more palatable next time around.”

If Justice Kennedy, 73, were to leave the Court, it would be without any West Coast representation. Nominating Judge Thomas — a member of the Ninth Circuit, just like AMK was before his elevation — would remedy that.

My advice for Judge Thomas: pray for Justice Kennedy to have a heart attack.

3. Judge Diane Wood (7th Cir.): It pains me to say this, because I adore Judge Wood, but this go-around was her last best chance at the Court. This July 4, Judge Wood will turn 60, viewed by some as the upper bound for a nominee in terms of age. As one of my friends observed on Facebook, Wood is on her way to becoming the liberal version of Judge Edith Jones, whose numerous unsuccessful appearances on shortlists led Slate to dub her “Susan Lucci in judicial robes.”

My advice for Judge Wood: enjoy Chicago. Or pray for ill to befall Justice Ginsburg very, very quickly — if RBG leaves soon, you might still have a shot.

In addition, I have a rather significant CORRECTION, concerning some speculation I passed along last night. The rumor was that Daniel Meltzer, the deputy White House counsel who recently announced his resignation to return to the Harvard Law School faculty, harbors a grudge against Kagan — because she beat him out for the HLS deanship — and that Meltzer therefore lobbied against her nomination to the Court.

So…. just how wrong was I about tension between Kagan and Meltzer?

double red triangle arrows Continue reading “What Happens Next to the Unsuccessful Shortlisters?
And a correction: Kagan and Dan Meltzer are besties.

A younger Elena Kagan

It’s Elena Kagan’s “wise Latina” comment. Just as Court watchers dug up a controversial, eight-year-old statement by Sonia Sotomayor last year, they have unearthed a law review article that Kagan authored in 1995 when she was a young law professor at the University of Chicago. In it, she criticized the Supreme Court confirmation hearings as they existed then (and now) as a “vapid and hollow charade,” in desperate need of reform to get at a nominee’s true judicial philosophy and views.

Now the statement is being thrown back at Elena Kagan as she prepares for her own confirmation hearings. Such is the nature of the modern confirmation process, when everything one has said or written can be found in the immense digital file cabinet that is the Internet (which is not always a bad thing, as Lat and Kash argue in a Washington Post piece today on myths about the confirmation process). A search of “Kagan and charade” in Google returned over 5,000 results this morning.

This seems like an opportune time to take a more thorough look at the 25-page book review from which the sound bite comes, and to highlight other passages that shed light on a 35-year-old Kagan’s opinion of the confirmation process. Not all of it casts a dark shadow when brought to light today. Regarding a nominee’s qualifications for the highest court, she presciently asked:

Must, for example …, a nominee have served on another appellate court — or may (as I believe) she demonstrate the requisite intelligence and legal ability through academic scholarship, the practice of law, or governmental service of some other kind?

Perhaps by serving as Harvard Law School dean, and then as Solicitor General?

What other gems can be found in the 15-year-old document?

double red triangle arrows Continue reading “Taking A Closer Look at Elena Kagan’s Description of Confirmation Hearings as a ‘Vapid and Hollow Charade’”

Tomorrow President Obama will officially announce his nomination of Elena Kagan, current Solicitor General and former Harvard Law School dean, to replace Justice John Paul Stevens on the U.S. Supreme Court. The news might get leaked unofficially tonight, so stay tuned.

We have no reason to question this prediction by Politico — and several reasons support it. The biggest clue is that Judge Diane Wood (7th Cir.), viewed by many as Kagan’s closest competitor, was notified yesterday by the White House that she (Wood) will not be the nominee.

OVERALL EXPLANATORY UPDATE: Apologies for the many updates and corrections below. The short version of what happened is that I originally reported that Judge Wood was notified yesterday that she wouldn’t be the nominee. I got some pushback on that — because it was, in fact, wrong. I corrected the item. But then, about two hours after this post first went up, Judge Wood did get a call from President Obama, informing her that he had decided to go in another direction.

UPDATE (7:00 PM): Some supporters of Judge Wood are denying that she’s out of the running. But, to the extent that Judge Wood hasn’t confirmed her getting dinged to them, I suspect she’s just trying to be a team player, by doing her part not to steal Kagan’s thunder or spoil the White House “surprise.”

UPDATE (7:30 PM): To the Wood supporters who insist she’s still waiting for a call from the White House: if she is the nominee, shouldn’t she know by now? Over at SCOTUSblog, Tom Goldstein is reporting that “[t]he Administration plans to identify its nominee in ‘guidance’ at 7:20am tomorrow morning, with a formal announcement by the President at 11am.”

CORRECTION (7:45 PM): Okay. I’m now hearing, on VERY good authority, that Judge Wood was NOT notified yesterday. So she is still (technically) in contention. I continue to believe that Kagan will be the nominee — but I’d be happy to be wrong about this, since I previously predicted that Judge Wood would be nominated. (My colleague Elie Mystal, meanwhile, has been predicting Kagan all along.)

UPDATE (8:45 PM): I can now say — with absolute, 100 percent certainty, from the same VERY good authority — that Judge Wood was just informed that she’s not going to be the nominee. President Obama did not tell her who has been picked for the position.

UPDATE (10:15 PM): The nominee is going to be Kagan.

The past few days have brought additional clues that point in Kagan’s direction….

double red triangle arrows Continue reading “More Clues That It Will Be Kagan
Judge Wood was notified tonight that she’s not the nominee.

Yesterday I predicted that President Obama will nominate Judge Diane Wood (7th Cir.) to the Supreme Court. My colleague Elie is on record as predicting that Obama will nominate Solicitor General Elena Kagan.

Both of these predictions still seem viable, in light of how Senator Orrin Hatch (R-UT) reacted after meeting with Obama yesterday to talk about SCOTUS nominees. From the Salt Lake Tribune:

President Barack Obama invited Sen. Orrin Hatch into the Oval Office for a private discussion Wednesday about his impending Supreme Court pick — and then Hatch immediately drove downtown to the Cato Institute where he ripped the president’s approach to nominating judges….

At a Cato event billed as a speech on health care, Hatch said Obama has clearly looked for qualifications that go beyond a strict adherence to the Constitution.

“Last summer, President Obama talked often about how judges should be guided by their empathy. This year, the buzz phrase seems to be core constitutional values,” Hatch said. “This is the same old thing, just another cloaking device for judges who seek to control the Constitution.”

So what exactly went down at the Obama-Hatch tête-à-tête?

double red triangle arrows Continue reading “SCOTUS Speculation: Will Obama’s Pick Tick Off Conservatives?
Plus some thoughts on a second Justice Thomas.

Now that President Obama has interviewed the four finalists for the U.S. Supreme Court seat he has to fill — Judge Merrick Garland (D.C. Cir.), Solicitor General Elena Kagan, Judge Sidney Thomas (9th Cir.), and Judge Diane Wood (7th Cir) — the nominee could be announced any day now. Who will it be?

We realize that the betting men (and women) favor Solicitor General Elena Kagan. Kagan is also the pick of Tom Goldstein, the veteran Supreme Court litigator and founder of SCOTUSblog, who correctly forecast the nomination of Sonia Sotomayor (a nomination that the White House sought his counsel on).

But we’re going to go out on a limb and make a crazy prediction: President Obama is going to nominate Judge Diane Wood, of the Seventh Circuit, to the Supreme Court. He’ll announce the nomination on Monday, May 10 — the Monday after Mother’s Day. (That’s significant, for reasons we’ll get to later.)

Right out of the starting gate, immediately after Justice John Paul Stevens announced his retirement, Solicitor General Elena Kagan emerged as the frontrunner for his seat. And Kagan is still widely regarded as the leading candidate.

But, in the past week and a half or so, we’ve felt a slight, almost imperceptible shift in the wind, in favor of Judge Wood….

double red triangle arrows Continue reading “SCOTUS Speculation: Could It Be Wood?
Ten reasons Obama might appoint Diane Wood.

For Article III groupies, the InterContinental Hotel in Chicago was the place to be last night. The annual meeting of the Seventh Circuit Bar Association and Judicial Conference of the Seventh Circuit attracted a bevy of judicial superstars, who mixed and mingled at the conference’s grand banquet.

The most notable luminary was Justice John Paul Stevens, the Circuit Justice for the Seventh Circuit (and a former judge of the Seventh Circuit himself). The 90-year-old Justice Stevens, who is stepping down from the Supreme Court at the end of this Term, was joined at the dinner by several of his possible successors.

Justice Stevens actually had the job of introducing one of them, Solicitor General Elena Kagan, who delivered the keynote address. In the audience were several other short-listers, including Judges Diane Wood and Ann Claire Williams, of the Seventh Circuit, and Judge Ruben Castillo, of the Northern District of Illinois (Chicago).

So, what went down at the dinner?

double red triangle arrows Continue reading “Judicial Sight-ations: Justice Stevens, and Several Potential Successors, in Chicago”

Is the clothing mega-retailer following the Supreme Court nomination process?

Check out this photo of a store window here in New York….

double red triangle arrows Continue reading “A SCOTUS Joke from The Gap?”

Who will replace Justice John Paul Stevens? While pundits, savants, and oracles across the SCOTUSphere pontificate and read Article III tea leaves, FantasySCOTUS.net conducted extensive and detailed polling to predict the next Justice. We have invited our nearly 5,000 members – who represent some of the closest and most ardent Court watchers – to weigh in on the vacancy, rank the candidates on the short list, and give their views on the potential nominees. We are still collecting data.

This is the third in a series of posts breaking down this data, as we attempt to add some certainty to the vast amounts of uncertainty emanating from the penumbras of the upcoming vacancy.

This week, we pit Elena Kagan, Diane Wood, and Merrick Garland in a head-to-head-to-head confirmation death match…

double red triangle arrows Continue reading “FantasySCOTUS Predictions of the Next Justice: Team Kagan v. Team Wood v. Team Garland”

That’s the question posed by Linda Greenhouse, former Supreme Court correspondent for the New York Times, in an extremely interesting post on the Opinionator blog. In attempting to address “why other countries [don't] suffer from the same toxic confirmation battles that we do,” she first notes that other nations don’t give their judges life tenure:

High-court judges [in other countries] typically serve for a single nonrenewable term of 9 to 12 years — a period during which Supreme Court justices in the United States are just getting warmed up. These shorter terms ensure frequent turnover and allay fears about a party in power being able to lock up the court for decades through the fortuity of a large number of vacancies; each vacancy naturally carries less weight.

But we’re guessing that Greenhouse, whose politics tend to fall on the left side of the aisle, actually likes having life-tenured judges who are completely unaccountable insulated from the political process. So she tosses out another idea….

double red triangle arrows Continue reading “Should Supreme Court Opinions Be Anonymous?”

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