Kagan: Parties Split on Reviews

By Kenneth Jost
Supreme Court Editor, CQ Press
      Supreme Court nominee Elena Kagan ended two days of questioning by Senate Judiciary Committee members on Wednesday afternoon [June 30] with reviews of her performance divided along partisan lines but her eventual confirmation seemingly assured.
      Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., ended the third day of the hearing late Wednesday afternoon with an explicit endorsement of Kagan’s legal knowledge and judgment. He closed by citing Kagan’s pledge in her opening statement on Monday to decide cases “impartially” and “modestly.” Leahy concluded: “Solicitor General Kagan, I believe you.”
      “I thought the president made a wise choice when he made it,” Leahy told reporters afterward, “and I feel it even more strongly today.”
      In his final remarks in the hearing room, however, Alabama’s Jeff Sessions, the committee’s ranking Republican, laid out a negative portrait. He criticized her as a “legal progressive” — “a pernicious philosophy,” he said — and accused her of violating the law in limiting official aid to military recruiters while dean of Harvard Law School.
      “The combination of record and statements leave me uneasy,” Sessions said. He said he would study the record more before deciding whether or not to vote for Kagan’s confirmation.
      Earlier in the day, however, Arizona’s Jon Kyl, the Senate Republican whip, said a GOP filibuster was “highly improbable.” Democrats hold a 58-41 majority, with one seat vacant after the death on Monday of West Virginia Democrat Robert C. Byrd.
      Kagan was judiciously guarded in any disclosures of her personal or legal views in roughly 16 hours on the witness stand. Even so, Democrats praised her for what Rhode Island’s Sheldon Whitehouse called her “complete and candid” answers. Republican Kyl, however, pronounced Kagan “less forthcoming” than previous nominees.
      The final rounds of questions included some that consisted as much of disquisitions by senators than actual interrogation of the nominee. Democrat Sheldon Whitehouse of Rhode Island ticked off a list of “telltales” that he saw in Roberts Court decisions as indicating an “activist” agenda. Kagan demurred. “I assume the good faith of everybody on the court, and that is how I approach the institution,” she said.
      In his turn, Republican Tom Coburn of Oklahoma asked Kagan about declining public confidence in government, which he linked to what he called a loss of freedom in the past three decades. Kagan had no comment on the current degree of freedom, but agreed on the need for confidence in government. “The welfare of the country is best served if the American people have confidence” in official institutions.
      Kagan appeared poised throughout her questioning. She smiled frequently, laughed occasionally, never got evidently angry, and showed nothing more than slight resentment on more than a few occasions. She was guilty, however, of a few misstatements. She referred to “Senator” Kennedy when discussing an opinion by Justice Anthony M. Kennedy, and she misspoke to Sen. Benjamin Cardin, D-Md., by using the name of the doctor in the Supreme Court’s partial-birth abortion rulings: Carhart.
      The hearing began with a glimmer of light cast by a law review article that Kagan wrote as a law professor in 1995 critical of Supreme Court confirmation hearings as “vapid” and “hollow” because of nominees’ reluctance to give direct answers. As a nominee herself, however, Kagan repudiated the article as “out of balance” and proceeded largely to follow the tight-lipped practice of the three most recent nominees to the court: Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Sonia Sotomayor.
      “There’s always some vapid and hollow aspects to a Supreme Court nomination,” remarked Utah Republican Orrin Hatch, who noted that he had voted on the confirmation of all eight of the current justices. After a pause, Hatch added of Kagan, “She’s been interesting.”

Kagan Mum on Recent Rulings

By Kenneth Jost
Supreme Court Editor, CQ Press
      Junior Democrats on the Senate Judiciary Committee used their questioning of Supreme Court nominee Elena Kagan on Wednesday [June 30] to highlight criticisms of the Roberts Court for closely-divided, precedent-breaking rulings, but Kagan continued to steer clear of substantive comments on recent cases.
      Rhode Island’s Sheldon Whitehouse opened the second day of questions for Kagan by pointing critically to the Roberts Court’s 5-4 votes in Citizens United campaign-finance decisions and two pro-Second Amendment decisions. He said the rulings were driven by what he called "the group of five" Republican appointees and contrasted the close divisions with the court’s unanimous vote a half-century ago in the Brown v. Board of Education school desegregation decision.
      “What efforts should be made to return to a collegial environment at the court?” Whitehouse asked. Instead of deciding cases by “the slenderest majority,” Whitehouse said, would it be better “to try to reach across the partisan divide at the court . . . , to reach their decisions a little more broadly for the sake of the law and the country?”
      In her reply, Kagan echoed Whitehouse’s endorsement of consensus as a goal, but she also steered clear of even a suggestion of criticism of the justices that she hopes to join as a colleague after Senate confirmation. “You wouldn’t want the judicial process to become in any way a bargaining process,” Kagan said.
      “Every judge has to do what he or she thinks the law requires,” Kagan continued. “But on the other hand there’s no question that the court is served best and the country is served best when people trust the court as an entirely nonpolitical body.”
      Whitehouse persisted by noting passages in the Citizens United decision that, in contradiction to Congress, found that corporate spending on political campaigns did not pose a threat of corruption or appearance of corruption. “Anybody who’s ever been near an election,” Whitehouse said, would see the court’s finding as “wrong.”
      Without accepting Whitehouse’s premise, Kagan did pledge deference to Congress in future cases. “I do think that congressional fact-finding is very important,” she said, “and that courts should defer to it.”
      Whitehouse’s line of questions was picked up by two other Democrats in the morning session: Delaware’s Ted Kauffman and Minnesota’s Al Franken. Kauffman pointed to a 2007 decision, overturning a 1911 precedent, to ease antitrust law. Franken complained of a Rehnquist Court decision in 2001 upholding mandatory arbitration clauses in employment contracts that he said the Roberts Court had expanded by a 5-4 vote last week (Jackson v. Rent-A-Center, West).
      Democrats had signaled in advance of the hearing that they would use Kagan’s appearance to focus on what they see as the Roberts Court’s activist, pro-business rulings. Outside the hearing room, Sen. Jon Kyl, R-Ariz., called the line of questioning “silly.” “I think we should focus more on the nominee,” Kyl said, “and find out what we can about her judging.”
      For their part, Republicans were focusing critically on Kagan’s answer on Tuesday endorsing a broad view of congressional power under the Constitution’s Commerce Clause, which authorizes Congress to regulate interstate commerce. In opening the subject on Tuesday, Oklahoma’s Tom Coburn was evidently interested in use of the Commerce Clause as part of the basis for the health insurance mandate included in President Obama’s health care plan as passed by Congress with virtually no Republican support.
      In comments Wednesday, Coburn said he took Kagan’s answer to be a sign that she would vote to uphold the health care plan, which some states are challenging as unconstitutional in federal court. “Anything the federal government tells us to do they can tell us,” Coburn said. In the hearing room itself, Utah’s Orrin Hatch called the Commerce Clause “the last refuge of a big-government scoundrel.”
      Kagan continued to steer clear of disclosing personal views or of what she described Tuesday as “grading” Supreme Court decisions. But she did venture a partial criticism of the famous baseball umpire metaphor that Chief Justice John G. Roberts Jr. used in his confirmation hearing in 2005 to illustrate his view of judicial restraint.
      The metaphor “has its limits,” Kagan said, because it suggests that law “is a kind of robotic enterprise . . . that there’s no judgment in the process.” She continued: “I do think that’s not right, and it’s especially not right at the Supreme Court level.”
      The committee continued questioning past noon even as senators went to the Senate floor to vote on confirmation of Gen. David Petraeus to be commander of the joint U.S.-NATO forces in Afghanistan. Kagan was to face additional questioning after a lunch break.

Kagan Firm, Deft on Stand

By Kenneth Jost
Supreme Court Editor, CQ Press

Supreme Court nominee Elena Kagan ended a full day of questioning by Senate Judiciary Committee members on Tuesday [June 29] seemingly comfortable and confident after firmly answering or deftly neutralizing lines of attack from Republican senators.

Kagan combined a command of legal material with recurrent modesty and occasional humor to answer friendly questions from Democrats already committed to supporting her confirmation and more challenging inquiries from Republicans expected to line up against her.

On the most concrete issue raised against Kagan, the former dean of Harvard Law School repeatedly denied preventing military recruiters’ access to students because of her opposition to the military’s “don’t ask, don’t tell” policy on service by gays and lesbians. “Military recruiters had access to Harvard students every single day I was dean,” Kagan said.

GOP senators, led by ranking Republican Jeff Sessions of Alabama, remained unsatisfied. “I'm more troubled today about the nominee than I was yesterday,” Sessions told reporters at a break. He said Kagan’s answers were “disconnected with reality.” But Judiciary Committee chairman Patrick J. Leahy, D-Vt., told reporters later he thought the military recruiting issue had been “put to rest.”

Kagan also did her best to put down repeated suggestions from GOP senators that she could emerge as an “activist” if confirmed to succeed Justice John Paul Stevens, who formally retired from the court on Tuesday after 34-1/2 years on the bench. Under questioning by senators from both parties, Kagan professed support for “judicial modesty” — narrow judicial decision-making divorced from personal views and respectful of precedent.

“Judges cannot import their own preferences . . . or their own moral values,” Kagan told Sen. John Cornyn, R-Texas, late in the day. “It would be inappropriate to do so.”

After initially fending off the question, Kagan did ultimately accept the description of herself as a “progressive.” But she declined repeated opportunities to criticize recent Supreme Court decisions, including the Citizens United decision, where she unsuccessfully argued as solicitor general in defense of the law banning corporate spending in federal campaigns.

In nominating Kagan, President Obama on May 10 linked her to his criticism of the decision as inviting corporate domination of the political process. In her answers, however, Kagan went not much further than to say, “I thought we had a strong case.”

In advance of the hearing, conservative groups had prepared to criticize Kagan for her support of gun control laws as associate White House counsel and deputy domestic policy director under President Bill Clinton. They also noted that while clerking for Supreme Court Justice Thurgood Marshall, Kagan said she was “not sympathetic” to a Second Amendment gun rights claim in a pending case.

On Tuesday, however, Kagan unhesitatingly said she would respect the Roberts Court’s two gun rights precedents: the 2008 decision in District of Columbia v. Heller and the ruling on Monday, McDonald v. Chicago, extending the Second Amendment protection to state and local gun laws as well. “I do agree that those decisions are settled law,” she said.

In their opening statements and in questions on Tuesday, GOP senators repeatedly noted Kagan’s clerkship with Marshall as evidence of likely judicial activism. After expressing admiration for Marshall, however, Kagan said, “If you confirm me, what you get is Justice Kagan, not Justice Marshall.”

Later, she specifically dissociated herself from Marshall’s view, held until his retirement in 1991, that capital punishment is unconstitutional. “I do believe the constitutionality of the death penalty is settled law,” she said.

Kagan also dissociated herself from the view of a “living Constitution,” anathema to conservatives. “I don’t think the term is particularly apt,” Kagan said. The term suggests “a loosey goosey method of interpretation,” Kagan explained. “I most certainly do not agree with that.”

To another critical line of questions, Kagan discounted the role of foreign and international law in interpreting the Constitution, a major complaint of conservatives on and off the court. “The American Constitution is an American document with American history and American precedents,” she said. Judges, she said, “should look to that American document and the precedents in interpreting it.”

Kagan defended, however, her part in a revamping of the Harvard Law School curriculum that included establishing a mandatory international law course for first-year students. International law, she said, “is something that all law students today should be familiar with.” She also rebutted criticism that U.S. constitutional law was not a mandatory first-year course. Constitutional law was covered in a broad first-year course on government processes, she said, and detailed treatment was better deferred until students’ second or third year.

Kagan faces a second day of questioning on Wednesday. Leahy says he plans to end the hearing after testimony from public witnesses on Thursday. The committee, with a 12-7 Democratic majority, is seen as all but certain to recommend Kagan for confirmation in a vote sometime in July. A Senate floor vote — where Democrats now hold a 58-41 majority after the death Monday of West Virginia’s longtime Democratic senator, Robert Byrd — is expected in early August.

Kagan Moves to Counter Attacks

By Kenneth Jost
Supreme Court Editor, CQ Press
      Supreme Court nominee Elena Kagan moved quickly on Tuesday [June 29] to refute two lines of attack from Republican senators by promising to leave political views behind if confirmed and denying accusations of anti-military bias because of her actions on military recruiting at Harvard Law School.
      Under friendly questioning from Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., Kagan insisted that her opposition to the military’s “don’t ask, don’t tell” policy on service by gays and lesbians never blocked military recruiters from access to students while she was dean. “Military recruiters had access to Harvard students every single day I was dean,” Kagan said.
      But Kagan faced more critical questions from Alabama’s Jeff Sessions, the committee’s ranking Republican. Sessions accused Kagan of violating a congressional enactment, the Solomon Amendment, by denying military recruiters access to the school’s Office of Career Services after the federal appeals court in Philadelphia ruled the law unconstitutional. “Your actions helped create a climate on campus that was not healthy for the military,” Sessions said.
      Kagan insisted that she was trying to ensure military recruiters access through a student veterans’ group while at the same time enforcing the school’s policy requiring legal employers to sign a pledge of maintaining anti-discrimination policies in hiring. She also acknowledged that eventually the Supreme Court upheld the Solomon Amendment, which barred federal aid to schools unless military recruiters had access equal to that of other employers.
      Republican senators used their opening statements on Monday to help frame the military issue along with suggestions that Kagan would be an “activist” judge if confirmed. Sessions picked up on the theme on Tuesday by asking Kagan about comments from friends, including former White House counsel Gregory Craig, characterizing her as a “progressive.”
      “I’m not quite sure how I would characterize my political views,” Kagan answered. But, she continued, “my politics would have to be . . . completely separate from my judging.”
      Later, Kagan also turned aside a friendly question from Sen. Herb Kohl, D-Wisc., asking her, “Where are your passions?” Kagan answered: “It would not be right for a judge to come in and say I have a passion for this or that.”
      After sitting silently on Monday through roughly three hours of opening statements from the committee’s 19 senators, 12 Democrats and seven Republicans, Kagan used her first opportunity to speak late in the afternoon to deliver a generally phrased opening statement pledging to decide cases “modestly,” “fairly,” and “impartially.”
      On Tuesday, Kagan appeared comfortable and confident as senators began 30-minute rounds of questioning each, alternately friendly from Democrats and critical from Republicans. At times, Kagan joked with senators, just as she had done with Supreme Court justices at times in some of her six arguments as solicitor general before the court.
      When asked about her 1996 law review article describing Supreme Court confirmation hearings as “vapid,” Kagan jokingly said that she had been reminded of the article many times in recent days. Kagan said that the “basic points” of the review, which called for nominees to be more forthcoming, were “right.” But she added, “In some measure I got some of the balance off.”
      Kagan proceeded to skirt many of the senators’ questions. But she did answer directly on the impact of the Supreme Court’s decision on Monday extending Second Amendment protections to state and local gun control laws. “That is binding precedent,” she told Leahy. “That is settled law.”
      Later, when Sen. Dianne Feinstein, D-Calif., asked about the court’s 2007 decision upholding a federal ban on so-called “partial birth abortions” without an exception permitting the procedure to protect a woman’s health. Citing previous court rulings, Kagan said, “I do believe the continuing holding . . . is that women’s life and health have to be protected in abortion regulation.”
      Kagan also gave a direct answer on the issue of televising the Supreme Court. “It would be a terrific thing to have cameras in the courtroom,” she said. “It would be great for the court and great for the American people.”
      On constitutional doctrine, however, Kagan skirted a question asking her to choose between Justice Antonin Scalia’s “originalist” approach to interpreting the Constitution and retired Justice David H. Souter’s approach of adapting the Constitution to changes over time. “I don’t think this is an either-or choice,” Kagan said. “In some cases looking to the original intent is the determinative [factor]. In other cases, it is likely not to be.”

Kagan: 'Modest' Role on Court

By Kenneth Jost
Supreme Court Editor, CQ Press
      Supreme Court nominee Elena Kagan promised the Senate Judiciary Committee on Monday that if confirmed she will decide cases “impartially” and “modestly” with an understanding of the court’s important but limited role in protecting liberty and the rule of law in the U.S. constitutional system.
      Kagan’s 12-minute opening statement came after Democrats on the committee showered her with praise for her “stellar” intellect and “mainstream” legal views even as Republicans began laying the groundwork for critical questions to begin on Tuesday.
      Alabama’s Jeff Sessions, the committee’s ranking Republican, criticized Kagan for a lack of “real legal experience” and her admiration for “activist judges,” including the Supreme Court justice for whom Kagan clerked in the late 1980s: Thurgood Marshall.
      Sessions and other Republicans also signaled they will question Kagan sharply about her role as dean of Harvard Law School in limiting aid to military recruiters for a period to protest the military’s “don’t ask, don’t tell” policy on service by gays and lesbians.
      In her statement, Kagan fondly recalled her service as Marshall’s law clerk and praised him for “his great struggle for racial justice.” Before serving on the court, Marshall had led the legal strategy that produced the landmark Brown v. Board of Education decision in 1954 outlawing racial segregation in public schools.
      Kagan served as an aide to the Senate Judiciary Committee itself during the 1993 confirmation hearing for Justice Ruth Bader Ginsburg and then in the late 1990s in the White House as associate counsel and later deputy domestic policy director to President Bill Clinton.
      Serving now as U.S. solicitor general, Kagan used her experience in the legislative and executive branches as the cue to underscore her appreciation of the court’s limited role. “The Supreme Court is a wondrous institution,” she said. “But my time in the other branches of government remind me that it must also be a modest one — properly deferential to the decisions of the American people and their elected representatives.”
      Kagan followed the example of the three most recent Supreme Court nominees _ Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Sonia Sotomayor _ in using her opening statement to link her personal narrative to broad themes of public service within the legal profession and devotion to liberty, justice, and the rule of law.
      “What the rule of law does is nothing less than to secure for each of us what our Constitution calls ‘the blessings of liberty’ — those rights and freedoms, that promise of equality, that have defined this nation since its founding,” Kagan said. “And what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint.”
      Kagan appears all but assured of confirmation from the Democratic-controlled Senate to succeed John Paul Stevens, who formally retires from the court on Tuesday [June 29] after 34-1/2 years on the bench. Stevens retires at age 90, the second oldest person ever to serve on the court; his tenure falls one day short of making him the second longest serving justice in history. He trails the record-setter, Justice William O. Douglas, whom he succeeded in 1975, and the 19th century justice, Stephen Field.
      Kagan sat patiently and unflappingly through opening statements from the Judiciary Committee’s 19 members, 12 Democrats and seven Republicans. Committee chairman Patrick J. Leahy of Vermont opened by describing Kagan’s qualifications as “unassailable” and her legal philosophy “well within the ideological mainstream.”
      Sessions followed immediately with sharp criticism, noting that Kagan had never tried a case before a jury and made her first appellate court argument only nine months ago as solicitor general. In that case, Kagan unsuccessfully urged the Supreme Court to uphold the McCain-Feingold campaign finance reform law.
      The Roberts Court’s decision in the case, Citizens United v. Federal Election Commission, was one of several rulings that Democratic senators cited as examples of the court’s conservative-leaning judicial activism that they hoped Kagan would counteract. “We need a justice who can create a moderate majority on this immoderate court,” said Sen. Charles Schumer, D-N.Y.
      For their part, Republicans said they will be using their question time to look for evidence of judicial activism in Kagan’s philosophy. “It’s important to find whether you’d move the court in a traditionalist or activist direction,” said Sen. John Cornyn, R-Texas.
      The hearing resumes at 9 a.m. on Tuesday, with Leahy to begin an opening round in which senators will have 30 minutes each to pose questions for Kagan. Barring unexpected developments, Kagan is likely to remain on the stand into a third day, with the hearing to wrap up by the end of the week after hearing from a total of 24 public witnesses chosen by the Democratic majority and Republican minority.

Gun Rights Ruling Ends Court's Term

By Kenneth Jost

Supreme Court Editor, CQ Press

The Supreme Court ended its 2009-2010 term in dramatic fashion today with sharply divided, 5-4 decisions extending Second Amendment protection to state and local gun control laws and striking down a part, but only a small part, of a corporate reform law passed in the wake of the Enron scandal.

In two other rulings, the court rejected a Christian group’s effort to validate exclusionary membership policies at a California law school and stopped just short of a ruling that could have barred patents altogether for so-called business methods.

The 75-minute-long session marked Justice John Paul Stevens’ final day on the bench after 34-and-a-half years on the high court. Barely an hour later, the Senate Judiciary Committee was to begin confirmation hearings on President Obama’s nominee to succeed Stevens: Elena Kagan, the current U.S. solicitor general and former dean of Harvard Law School.

At age 90, Stevens is the second-oldest person ever to serve on the Supreme Court. If confirmed — as universally expected — Kagan will join the court at age 50 as the youngest of the current justices.

The court’s conservative majority, led by Chief Justice John G. Roberts Jr., flexed its muscles in three of the four 5-4 decisions on Monday. Moderate conservative Justice Anthony M. Kennedy joined the bloc of four liberal justices to produce a majority in the law school case.

Three of the four cases decided on Monday featured justices in dissent reading portions of their opinions from the bench — what amounts to high drama for the Supreme Court. The session opened on a somber note with Roberts noting the death on Sunday of Martin Ginsburg, husband of Justice Ruth Bader Ginsburg and a noted tax lawyer and law professor. It ended on a nostalgic note with Roberts reading a farewell letter to Stevens signed by eight of the justices and retired justices Sandra Day O’Connor and David H. Souter.

Roberts praised Stevens for his “vigor and integrity,” “unaffected decency,” and combination of “genuine collegiality with independent judgment.” Stevens responded, in what Roberts introduced as a “rebuttal,” mockingly apologizing for having “overstayed my welcome.” His voice broke at one point in the reading.

The gun ruling, McDonald v. Chicago, invalidated a ordinance that virtually banned any private possession of handguns in the nation’s third-largest city. For the majority, Justice Samuel A. Alito Jr. relied heavily on the 2008 decision in District of Columbia v. Heller, striking down a handgun ban in the nation’s capital. Because Washington is a federal jurisdiction, the ruling left open the question whether the newfound Second Amendment right to possession of a handgun in the home for self-defense also applied to state and local governments.

Emphatically, the court said yes. “The Second Amendment is fully applicable to the states,” Alito wrote in the opening of a 45-page dissent. In a 35-page dissent, Justice Stephen G. Breyer said the ruling intrudes on the states’ “quintessential exercise of police power” and invites federal court challenges to every state and local gun regulation.

Roberts spoke for the conservative majority in the final decision of the term, striking down a portion of the Sarbanes-Oxley law enacted in 2002. The act created a new agency, the Public Company Accounting Oversight Board, to regulate accounting firms _ which had been blamed for some of the corporate misdeeds implicated in the Enron and other business scandals.

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the court held the structure of the bond was unconstitutional because of separation of power concerns. The law provided that the board members were to be appointed by the Securities and Exchange Commission (SEC) Roberts said that the political insulation of the SEC members combined with the political insulation of the PCAOB members — removable only for cause — infringed on the president’s executive powers.

Dissenting again, Breyer warned the ruling cast doubt on tenure-protection provisions for thousands of federal officials, including administrative law judges and what he said was half of the military’s officer corps.

The patent case, Bilski v. Kappos, had been closely watched by the patent community as a test of whether business methods were patentable. The ruling invalidated a patent allowed for a method of hedging commodities investments. In his majority opinion, Kennedy said the method was only “an abstract idea” and not patentable.

In an opinion technically concurring in the judgment but amounting to a dissent, Stevens said the court should have completely barred patents for business methods. He criticized the “timid disposition of the case.” The court’s three other liberal justices joined his opinion.

In the fourth case, Christian Legal Society v. Martinez, the court upheld what it called the “all-comers” policy for student organizations at Hastings Law School in San Francisco. The Christian group sought an exemption in order to limit membership to people who shared the group’s religious views. Ginsburg wrote for a five-justice majority that included Kennedy in upholding the school’s policy.

The court’s term will be best remembered for the dramatic Citizens United decision striking down part of the McCain-Feingold campaign-finance reform law and giving corporations and unions the right to spend unlimited sums from their own treasuries on federal campaigns. In another significant conservative victory, the court upheld on a 6-3 vote a broad interpretation of an anti-terrorism law prohibiting any “advice or assistance” or “training” to designated foreign terrorist groups.

Liberals counted some significant victories, however, including a 5-4 decision prohibiting life without parole sentences to juvenile offenders (Graham v. Florida). Free-speech advocates also counted a victory in an 8-1 decision striking down a federal law prohibiting depictions of animal cruelty (United States v. Stevens).

In criminal law, the court issued three decisions narrowing Miranda protections but two rulings that somewhat liberalized rules on federal habeas corpus challenges to state criminal convictions and sentences. And in a significant business-related case, the court barred securities fraud suits in U.S. courts for stocks sold on foreign exchanges.

Kagan Praised, Blasted on Eve of Hearing

By Kenneth Jost
Supreme Court Editor, CQ Press
      Elena Kagan goes before the Senate Judiciary Committee on Monday [June 28] with less known about her legal views than any Supreme Court nominee in the past two decades. Not since then-Judge David Souter was dubbed the “stealth candidate” in 1990 have senators had so little clearly pertinent evidence to use in trying to gauge what kind of justice a presidential nominee will be if confirmed by the Senate for the lifetime post.
      One year ago, Republicans and other conservatives had some significant ammunition to use against President Obama’s first Supreme Court nominee: then-Judge Sonia Sotomayor. They used Sotomayor’s participation in disputed rulings in gun rights and affirmative action cases and her controversial speeches on diversity to fashion a line of attack that eventually produced 31 votes against her confirmation.
      Kagan’s lack of judicial record or extensive legal scholarship allows the White House and other supporters to call for her confirmation based on general praise for her knowledge, judgment and experience. In a conference call with reporters on Friday, White House senior adviser David Axelrod noted Kagan’s service in all three branches of government — as a Supreme Court law clerk, congressional aide, White House adviser and now solicitor general — along with what Axelrod described as Kagan’s “respect for the proper role that the [Supreme] Court plays” in the U.S. system of government.
      Critics looking for ammunition against Kagan have dug deep into the more than 160,000 documents from Kagan’s four years in the White House during President Bill Clinton’s second term (1995-1999), first as associate counsel and then as deputy director of the domestic policy council. In addition, they have used memos from her year as a law clerk to the late Justice Thurgood Marshall and her deanship of Harvard Law School, where she briefly limited assistance to military recruiters because of the military’s “don’t ask, don’t tell” policy on services by gays and lesbians.
      In a press conference in front of the Supreme Court on Thursday, Curt Levey, executive director of the conservative Committee for Justice, said the evidence shows Kagan to be a politician and a judicial activist. “The more we’ve learned about her, the more we’re concerned that she’s not going to respect the rule of law,” Levey said.
      Levey and representatives from eight other conservative groups rattled off a laundry list of supposed vulnerabilities for Kagan. They include conventional hot-button issues such as abortion, affirmative action and gun rights along with more arcane topics such as the First Amendment and foreign and international law.
      Levey acknowledged, however, that Kagan is drawing less scrutiny than Sotomayor did a year ago. “She’s a stealth candidate,” Levey. “There’s still a lot we don’t know.”
      So far, only one Republican senator, Oklahoma’s James Inhofe, has declared his opposition to Kagan’s confirmation. But Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., says he expects most of the GOP’s 41 senators will vote against her. None of the 57 Democrats or the two independents who caucus with Democrats have publicly voiced doubts about Kagan’s confirmation.
      With the hearings less than a week away, Senate Republican leader Mitch McConnell of Kentucky and Utah’s Orrin Hatch, a former Republican Judiciary Committee chair, both went to the Senate floor with critical speeches depicting Kagan as a political appointee and a potential judicial activist. For his part, Leahy told reporters at a Senate press gallery session that Kagan has a “great record” and understands the Constitution and the law and their effects on “hardworking Americans.”
      The Judiciary Committee hearing opens at 12:30 p.m. on Monday, less than two hours after the Supreme Court ends its current term with four final decisions, including the closely watched test case on the applicability of Second Amendment gun rights to state and local laws. It will also be the final day on the court for Justice John Paul Stevens, whose decision to retire midway through his 35th year on the court created the vacancy that Kagan has been chosen to fill.
      The hearing will begin with opening statements from the committee’s members: 12 Democrats and seven Republicans. Kagan is expected to give an opening statement late Monday afternoon, with questions then to begin on Tuesday. Leahy says the hearing will be concluded by the end of the week — the same schedule followed in the recent confirmation hearings for Sotomayor and for President George W. Bush’s two nominees: Chief Justice John G. Roberts and Justice Samuel A. Alito Jr.
      Late Friday, Leahy and ranking Republican Jeff Sessions of Alabama released a list of two dozen public witnesses for the final day of the hearing. The Democrats’ witnesses include Harvard colleagues of Kagan’s, her Bush-appointed predecessor as solicitor general, and two one-time employment discrimination plaintiffs who lost closely divided decisions from the Roberts Court.
      The Republicans’ list of 14 witnesses is heavy with current or retired military officers and also includes conservative law professors and representatives of anti-abortion and pro-gun rights groups. The committee will also hear from two representatives of the American Bar Association’s Standing Committee on the Federal Judiciary, which gave Kagan its highest rating for the position: “well qualified.”
      Levey says he expects “some tough questions” for Kagan from GOP senators. Axelrod said Kagan has been prepping for the hearing by “fielding questions for several hours a day” over the past week. “She’s certainly prepared to deal with whatever comes,” he told reporters.

‘Honest Services’ Law Narrowed

By Kenneth Jost
Supreme Court Editor, CQ Press
      A unanimous Supreme Court has substantially narrowed a federal criminal statute that federal prosecutors had used as one of the most flexible legal weapons to go after corporate and government misconduct.
      The ruling set aside convictions in two high-profile white-collar criminal cases, including the 2006 conviction of former Enron chief executive Jeffrey Skilling for his part in overstating the company’s financial picture in the years prior to its collapse. Skilling had also attacked jury selection in his trial in Enron’s hometown of Houston, but the justices rejected his appeal on that issue by a 6-3 vote.
      In a second case, the court also set aside the 2007 conviction of Canadian publishing magnate Conrad Black for an alleged conflict of interest in a multimillion-dollar side deal in connection with the sale of a California newspaper.
      Both Skilling and Black had received lengthy prison sentences: 24 years for Skilling; six-and-a-half years for Black. The Supreme Court’s rulings in both cases leaves it up to federal appeals courts to determine whether the convictions can stand under the new, narrow definition of the federal “honest services” statute.
      The statute makes it a crime for a defendant to defraud someone — for example, a company or an officeholder’s constituents — of the “intangible property” of the defendant’s “honest services.” Congress enacted the current version of the law in 1988 following a Supreme Court decision aimed at cutting back federal prosecutors’ expansive use of the statute in its previous form.
      The court’s ruling in Skilling’s case says, in effect, that Congress’s re-enactment left the law perilously close to unconstitutional vagueness. To cure the problem, Justice Ruth Bader Ginsburg wrote for a six-justice majority in Skilling v. United States, the law would be limited to bribery or kickback schemes, not to more amorphous offenses.
      “Reading the statute to proscribe a wider range of offensive conduct,” Ginsburg wrote, “would raise the due process concerns underlying the vagueness doctrine.”
      Three justices would have gone further and ruled the provision flatly unconstitutional. “In transforming ‘honest services fraud’ into a prohibition of ‘bribery and kickbacks,’ [the court] is wielding a power we long ago abjured: the power to define new federal crimes,” Justice Antonin Scalia wrote. Justices Clarence Thomas and Anthony M. Kennedy joined his opinion.
      In a third case, the court also ordered a new hearing for an Alaska legislator, Bruce Weyhrauch, who had been indicted under the honest-services law for an alleged conflict of interest in seeking legal work from an oil services company with a bill affecting the industry pending before the legislature. A federal district court judge threw out the charge, but the Ninth U.S. Circuit Court of Appeals reinstated the charge.
      The Supreme Court had indicated its concern with the “honest services” statute by agreeing to hear Black’s and Weyhrauch’s appeals a year ago and then adding Skilling’s case to its calendar in October after the start of a new term. Briefs urging the justices to narrow the law were filed by the U.S. Chamber of Commerce and the National Association of Criminal Defense Lawyers
      With the Supreme Court nearing the end of its term — now set for Monday — court watchers had been waiting expectantly for the ruling. Experts appeared to have formed a consensus that the justices would narrow the law. Even so, the unanimous vote to confine the law to no more than what Ginsburg called its “bribe-and-kickback” core seemed something of a surprise.
      Douglas Berman, a sentencing law expert at Capital University Law School in Columbus, Ohio, and publisher of Sentencing Law Blog, said the decisions may have been prompted in part by the hefty prison terms available in federal court. “It is reasonable to speculate that the very lengthy prison sentences that are now often prescribed under the federal sentencing guidelines for fraud may have played a role in the justices’ thinking,” Berman wrote on his blog.
      In Houston, one of Skilling’s lawyers said his attorneys were “extremely pleased and relieved” with the decision. “The Supreme Court unanimously decided that Jeff Skilling did not violate the honest services law, and that is fatal to the government’s case,” attorney Daniel Petrocelli told the Houston Chronicle.
      Skilling was convicted of a total of19 nineteen counts: one count of conspiracy to commit wire honest-services fraud, 12 counts of securities fraud, five counts of making false statements to auditors, and one count of insider trading. Since Skilling was not charged with accepting any “side payments,” Ginsburg said, he could not have been guilty of honest-services fraud under the new construction.
      Skilling’s lawyers argued in effect that the government’s honest-services count influenced the jury’s convictions on the other counts. The Supreme Court ruling left it up to the federal appeals court in New Orleans to consider whether the other counts could stand.
      Black, chief executive officer of Hollinger Company, owner of the Chicago Sun Times among many other newspapers, was convicted under a general jury verdict of three counts of mail and wire fraud and one count of obstruction of justice. He was charged with negotiating an agreement to be paid $5.5 million in exchange for a non-compete agreement after the sale of a small community newspaper in Mammoth Lake, Calif.
      The short, unanimous ruling in Black v. United States left it up to the federal appeals court in Chicago to determine whether Black’s conviction should be reversed because the case was tried under the now-rejected broad view of the honest-services law.

     For background, see Kenneth Jost, “Corporate Crime,” CQ Researcher, Oct. 11, 2002.

Privacy Controversy Prompts Facebook Changes

By Caroline Young
The recent global outcry over Facebook’s lax privacy controls is forcing the social-networking site to better protect users’ personal information.
Privacy regulators are blaming Facebook for breaking its promise not to release personal information about its more than 400 million members without their permission. In May The Wall Street Journal first reported that a software loophole had allowed advertisers to obtain information about Facebook users, such as their name, hometown, age and occupation.
Although it is not unusual for Web advertisers to receive the Web address where users click on their ads, non-social networking sites only send a scramble of letters and numbers that can’t be connected to a single person. But Facebook and other social networking sites were using members’ names in links to advertisers.
Ben Edelman, an assistant professor at Harvard Business School, studied the computer code of social-networking sites for The Journal and confirmed the exposure of users’ private information. “If you are looking at your profile page and you click on an ad, you are telling that advertiser who you are,” he told The Journal. Facebook creator Mark Zuckerberg admitted the company had erred and promised to create straightforward and safer ways to share personal information. In a column in The Washington Post on May 24, three days after The Journal revealed the glitch, he seemed to be blaming the problem on Facebook’s success. “It’s a challenge to keep that many people satisfied over time, so we move quickly to serve that community with new ways to connect with the social Web and each other,” Zuckerberg said. “Our intention was to give you lots of granular controls, but that may not have been what many of you wanted. We just missed the mark.”
Craig Wills, a professor of computer science at Worcester Polytechnic Institute, studies the privacy dilemma. “Most social networks haven’t bothered to obscure user names or ID numbers from their Web addresses,” he told The Journal. A Facebook spokesman acknowledged the company had erred. “We were recently made aware of one case where if a user takes a specific route on the site, advertisers may see that they clicked on their own profile and then clicked on an ad."
Facebook’s complex way of providing users with information-control options adds to the problem.
While Internet users are in favor of protection policies, most find the settings to be difficult to understand and adjust to their liking. To navigate Facebook’s privacy settings, users are presented with more than 50 privacy buttons followed by over 170 options. Facebook’s written privacy statement is longer than the 4,400-word U.S. Constitution.
Zuckerberg says that easier-to-use privacy controls are in the works. “We are working hard to make these changes available as soon as possible,” he told The Post. “We will also give you an easy way to turn off all third-party services.” While his goal is to help in creating a more connected and open society, he says he knows users have the right to choose and control their level of exposure.
Facebook’s user directory now reveals less searchable information -- only the user’s name, gender and picture. In addition, the computer code that enables ad companies to receive users’ private information is being reconstructed to parallel how advertising functions across the Web.
In the wake of the Facebook controversy, lawmakers in Congress are considering legislation to control the leakage of users’ personal information to advertisers.

For background, see Patrick Marshall, "Online Privacy,"
CQ Researcher, Nov. 6, 2009, and Marcia Clemmitt, “Cyber Socializing,” CQ Researcher, July 28, 2006.

Caroline Young is a summer 2010 CQ Researcher editorial intern. She is a rising senior at Flagler College, where she is co-editor of The Flagler College Gargoyle.

New Concern About Child Soldiers

By John Felton
CQ Global Researcher contributor
      Three events in recent weeks have brought renewed attention to the issue of children serving as fighters in civil conflict, a topic covered in CQ Global Researcher in July 2008. On May 21, the United Nations made public its latest annual report on Children and Armed Conflict, written by the secretary-general's special representative on that topic, Radhika Coomaraswamy. This year's report listed, for the first time, the "most persistent violators" of children in conflict -- 16 armed groups (including the "transitional government" of Somalia) repeatedly cited for the past five years for using children as soldiers.
      Nine of the groups (again including the Somali government) were cited as having killed, maimed, raped or used sexual violence against children. Uganda's notorious Lord's Resistance Army – which has terrorized in civilians in Uganda, the Democratic Republic of the Congo, Chad and other countries -- was one of the most prominent groups on the list.
      The New York Times on June 14 focused on the use of child soldiers by the Somali transitional government, which has received millions of dollars in aid from the United States and other countries. Reporter Jeffrey Gettleman documented cases in which both the government's military and the Islamist insurgency that controls much of the country use children – some 12 years of age or even younger – as active fighters.
      Gettleman's story raised the possibility that the United States is indirectly paying these child soldiers as part of its aid program intended to help the wobbly government survive a strong challenge by the powerful Islamist insurgent group known as al-Shabaab. The report prompted some senators to press the U.S. government to pressure the Somali government to stop recruiting children, and to consider withholding U.S. aid to the transitional government until it assures the United States that such activities have been halted. The Somali government has vehemently denied that it recruits child solders.
      After a day-long meeting on the subject of child soldiers, the U.N. Security Council on June 16 – for the first time ever – expressed its readiness to take "targeted measures" against persistent violators of laws prohibiting the use of child soldiers. The council asked its Working Group on Children and Armed Conflict to work with sanctions committees and other groups to develop appropriate measures. Coomaraswamy and other child-rights advocates had been pressing the council to take this step for the past several years. However, the Security Council did not set a timetable for implementing the measures.

More Research Urged on Football Injuries

By Seth Shapiro
The NFL and its critics are hoping that a recent concussion forum will usher in a new era of health consciousness that ultimately will make professional football safer for its players.
The Traumatic Brain Injury in Professional Football forum, hosted by Johns Hopkins University School of Medicine on June 2 in Washington, was called because of concerns that the NFL needed to do more to protect its players. After repeated congressional chastising, the league, with new co-chairmen leading the head, neck, and spine committee, believe it is poised for change.
Dr. H. Hunt Batjer and Dr. Richard G. Ellenbogen were introduced as the new co-chairmen by the NFL in March after the former heads resigned amidst widespread discontent among players and football safety advocates. Dr. Ira Casson, one of the previous chairmen, came under strong criticism for his reluctance to acknowledge the evidence linking concussions NFL players suffered in games and later brain diseases they developed.
While no official policy changes took place at the forum, many potential alterations were discussed, according to coverage in The Baltimore Sun. Suggestions were made to limit offseason practice, to minimize the amount of hitting during in-season practice, and to educate players about the dangers of head-first tackling.
In addition, Batjer and Ellenbogen are hoping to institutionalize reform to overthrow the play-through-the-pain mantra that pervades the NFL and other sports. Batjer and Ellenbogen noted typical consequences that make players wary of leaving the field after an injury, including financial losses as well as reduced playing time even after recovery. The physicians suggested guaranteeing players the resumption of their roles on the team when they return from injury as well as financial incentives for players to report injuries.
Constantine Lyketsos, the head of the planning committee for the forum, said in a press conference that the gathering was called to focus on gathering scientific evidence regarding head trauma. Research is still needed to draw conclusions about the short- and long-term outcomes of head injuries suffered by NFL players.
Despite the attempts of the NFL to make football safer for its players, there are those that deny the feasibility of that goal. “It is fundamentally impossible to take the violence and brutality out of football,” former Super Bowl champion Dave Pear stated in an email. Pear believes that the NFL is “interested in limiting their liability from” the professional football players by conducting research and hosting forums that examine making the NFL safer. He called the recent forum a “[public relations] stunt.”
In an opening statement to the forum, NFL commissioner Roger Goodell said the league was committed to using its position “to lead the way and have a positive impact” not only on pro football but also on the sport “at all levels.”
The culture that predominates in the NFL is often replicated by subordinate sectors of football, including collegiate and youth football leagues. The NFL hopes that its concussion forum and its own reform will spark awareness and similar change across all levels of football.
Concussions and head trauma are areas of concern for more than just the NFL. In addition to independent physicians and scientists who will contribute to the research, the forum also included attendance by military doctors. The same research that could help NFL players who suffer head injuries could likewise help injured soldiers.
This forum was the third of its kind the NFL has had since 1997, and much of the rhetoric has been heard before. In Goodell’s opening remarks to the forum, he said the NFL’s goal is “to make sure medical decisions always override competitive decisions.” This, however, was almost a verbatim repetition of his comments at the 2007 forum: “Medical decisions must always take priority over competitive concerns,” according to Training and Strength, a sports medicine magazine, which heralded the 2007 forum as “momentous.”
Dr. Thom Mayer, the medical director of the players association, cautioned the NFL not to let a divide develop between promises made and the fulfillment of those promises. “We look forward to assuring that the shadow between what is said and what is done is as short as possible,” Mayer said at the forum. He also sternly told the NFL that change cannot be done by the players alone; the league must play a role.

For background, see Kenneth Jost, “Professional Football: Is the NFL doing enough to protect its players?,” CQ Researcher, Jan. 29, 2010.

Seth Shapiro, Cornell ’11, is a staff member of The Cornell Daily Sun and a CQ Researcher editorial intern for summer 2010.

'Law and Order' Exception to Miranda Rule

By Kenneth Jost
Supreme Court Editor, CQ Press
      “Law and Order” may have ended its 20-year run, but Briscoe, Curtis, and all the other cops and prosecutors on the compelling TV series can rest content after a Supreme Court decision on Tuesday [June 1] that eases the rule on police interrogation established in the landmark Miranda case. By a 5-4 vote, the justices gave the green light to the kind of subtle coercion that “Law and Order” detectives still practice in nightly reruns and that Miranda had sought to prevent.
      Like many of the perps on “Law and Order,” Van Chester Thompkins had nothing to say while two detectives from Southfield, Michigan, questioned him on Feb. 22, 2001, about a drive-by shooting outside a strip mall a year earlier. In Thompkin’s case, he sat on a hard chair in an eight-foot by ten-foot interrogation room for three hours — long enough for three episodes — after refusing to sign a waiver of his Miranda right to remain silent.
      For two hours and 45 minutes, Thompkins said nothing more substantial than to complain about the chair and to decline Detective Christopher Helgert’s offer of a mint. In the real world, one would see that Thompkins did not want to talk. But, at the cop house, a different rule applies. Helgert kept up his monologue and finally figured out Thompkins’ weak spot. “Do you believe in God?” he asked. Thompkins said yes. “Do you pray?” Again, Thompkins said yes. “Do you pray to God to forgive you for shooting that boy down?” Helgert asked. Tearing up, Thompkins answered in one word: “Yes.”
      As a district attorney in California in the 1930s, Earl Warren had experience with old-style police interrogations: slapping suspects around, and the like. As chief justice, he learned that police had adopted other techniques. “The modern practice of in-custody interrogation is psychologically, rather than physically, oriented,” Warren wrote in the 1966 Miranda decision. Police manuals, Warren explained, tell officers to isolate the suspect, display confidence, assume the suspect’s guilt, and get him simply to elaborate on what the police pretend already to know.
      The Supreme Court created the Miranda rule to combat what Warren aptly described as the inherently coercive nature of that kind of interrogation. Everyone is now familiar with the recitation of Miranda rights: the right to remain silent, the right to cut off questioning, the right to have a lawyer, and the right to have the lawyer present during interrogation. To safeguard those rights, the court said that police cannot use a suspect’s statement unless they show that a suspect knowingly and intelligently waived those rights. And a valid waiver could not be shown, the court said, simply by the fact that a confession was in fact obtained.
      In Thompkins’ case, Michigan courts drove right by those waiver rules. Thompkins’ statement was introduced and, in a close case, helped the prosecution get a conviction. On appeal, the Michigan courts said, counterintuitively, that Thompkins had to speak up in order to assert his right to remain silent. And, in seeming contradiction, the state courts said that Thompkins had waived that right with three one-word answers uttered after nearly three hours of interrogation.
      The Supreme Court agreed. “The record in this case shows that Thompkins waived his right to remain silent,” Justice Anthony M. Kennedy wrote for the Roberts Court’s conservative majority in Berghuis v. Thompkins. The suspect’s one-word answer about praying, Kennedy continued, “was sufficient to show a course of conduct indicating waiver.” True, Kennedy conceded, Thompkins sat in a straight-backed chair for three hours, but — overlooking Miranda — the justice said there is “no authority” for the proposition that an interrogation under these circumstances is “inherently coercive.”
      For the four liberal dissenters, Justice Sonia Sotomayor, a former local prosecutor, labeled the decision “a substantial retreat from the protection against compelled self-incrimination” established by Miranda. That decision places a “heavy burden” on the prosecution to show that a suspect has waived the right to remain silent, she explained, and it was “objectively unreasonable” to conclude that the prosecution had shown a waiver in Thompkins’ case on the basis of “three one-word answers, following 2 hours and 45 minutes of silence . . . .”
      Sotomayor also criticized the court’s new rule that a suspect must make a “clear statement” in order to assert a right to remain silent. “Advising a suspect that he has a ‘right to remain silent’ is unlikely to convey that he must speak (and must do so in some particular fashion) to ensure the right will be protected,” she wrote.
      For the majority, Kennedy suggested that the “clear statement” rule would not affect many cases. In a footnote, however, Sotomayor listed a raft of lower court decisions holding that suspects had not invoked a right to silence despite “an array of statements whose meaning might otherwise be thought plain.” Like the suspect who said, “I just don’t think I should say anything,” but his later statements admitted anyway.
      The new decision is not the first retreat from Miranda— and is unlikely to be the last. Yes, Miranda is still good law. But two decades of “Law and Order” show that fictional police know how to work around it. And the Roberts Court is OK with that in real life.