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Lee Ross

Supreme Court

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June 28th: Big Day for Lady Justice

June 26, 2010 - 3:20 PM | by: Lee Ross

Monday will mark the confluence of many significant legal events in Washington, D.C. which will undoubtedly make it the most significant day of the year on the legal calendar.

Elena Kagan’s Supreme Court confirmation hearing is set to begin shortly after noon on Capitol Hill. June 28 is also the last scheduled day of the high court’s 2009-10 term and that morning the justices are expected to return their final four outstanding opinions. There is also a good chance we will find out that day if the Court will take a several high-profile cases including a major challenge to campaign finance law.

It will also be the final day on the bench for Justice John Paul Stevens. As a tribute to the Court’s longest serving justice, Tom Goldstein, a prominent D.C. lawyer is offering free bow ties to fellow lawyers as a tribute to the 90 year old justice who frequently dons the distinctive neckwear.

Elena Kagan’s Confirmation Hearing

In the weeks since President Obama’s nomination announcement lawmakers and commentators have poured through Kagan’s past looking for insight into her legal thinking. Much attention has been focused on her work in the 1990’s as a mid-level Clinton Administration staffer in the White House and from her earlier year-long clerkship for Justice Thurgood Marshall.

Senate Judiciary Committee Chairman Patrick Leahy, D-Verm., has defended the selection of June 28 as the appropriate date to begin the hearing. He has also taken to the Senate floor on several occasions to defend Kagan’s record. “The unfair attacks that have been leveled at this nominee are all the more reason to give her the chance to respond anew and for her hearing to proceed without delay,” Leahy said earlier this month. On Friday, White House Counsel Bob Bauer, said the release of papers from the Clinton Presidential Library has provided the public with an “unprecedented quantity of information” and says Kagan is well prepared for the hearing and the job of a Supreme Court justice.

The committee’s ranking member, Sen. Jeff Sessions, R-Ala., has argued against the June 28 start date contending it offered senators and staff too little time to properly review Kagan’s record. But it’s abundantly clear that Sessions has already found a lot of objectionable material from Kagan’s past. “It is clear that Ms. Kagan has demonstrated both strong liberal views and a willingness to substitute those views for sound legal judgment,” Sessions said. “Given this record, and the fact that Ms. Kagan has such sparse legal experience, I am concerned about whether Ms. Kagan will suddenly be able to set aside the political agenda that has defined such a large portion of her career.”

Monday’s kickoff will be the most scripted day of the confirmation hearing that is expected to last all week. The day is dedicated to opening statements from the 19 Senate Judiciary Committee members (12 Democrats and seven Republicans) and the nominee. Kagan will be presented to the committee by Massachusetts Senators John Kerry (D) and Scott Brown (R). In between her work in the Clinton and Obama Administrations, Kagan was a professor at Harvard Law School outside Boston. It is customary for nominees to be presented to the committee by their home state senators, though Kagan was born and raised in New York City and once taught at the University of Chicago Law School.

Kagan’s statement to the committee will not come until late in the afternoon and will end the hearing’s first day. It will mark the first substantive remarks from her since the May 10 nomination announcement at the White House. In the weeks since, Kagan has met with 62 senators and more recently has spent several hours each day preparing her answers to questions she expects to hear.

In a conference call with reporters Friday, White House Senior Advisor David Axelrod said there’s enormous political pressure on senators to divide over Kagan’s nomination. He says Kagan merits confirmation and is a bit puzzled by her critics who’ve failed to touch upon anything in Kagan’s record that has engendered doubt about her ultimate elevation to the high court. “It feels like we have an opposition in search of a rationale,” Axelrod said.

Supreme Court’s Closing Act

In a scene very familiar at the Supreme Court, the justices have once again pushed off until the end of June some of the thorniest issues on their docket. The Court started its term in October and has four opinions outstanding. Two of those cases, that are of keen interest to the business community, were argued late last year.

One examines if an economic process is eligible for a patent. Usually patents involve tangible items that you can look at or even hold in your hand. But the inventors in this case came up with a complicated formula that supposedly protects consumers and energy suppliers from fluctuations in demand due to extreme temperatures or other unforeseen situations. The high court’s ruling could have far reaching implications for a multitude of industries including health care and electronics where technology development is a huge factor in profitability.

The other business case has its roots in the corporate accounting scandals from the previous decade. Lawmakers responded with legislation that reformed the federal oversight of the accounting industry. A key component of that law is the Public Company Accounting Oversight Board (PCAOB, sometimes called “peek-a-boo”) which is tasked with overseeing the auditing firms responsible for making sure the books of publicly-traded firms are legitimate. But during oral arguments in December the justices were tied up over issues involving the Constitution’s separation of powers and if a quasi-independent agency attached to the Securities and Exchange Commission is impermissible because the president lacks the authority to directly hire or fire its board members.

The other two opinions that are expected to come down Monday will also generate plenty of interest. One is a follow-up to the Court’s historic 2008 ruling that individuals have a constitutional right to keep and bear arms. Their ruling on the reach of the Second Amendment settled decades of disagreement but it was essentially limited to the District of Columbia. The present case comes from Chicago which has a gun ban similar to the one the high court invalidated in the nation’s capital. The justices will decide if their 2008 decision can be extended or incorporated to the 50 states.

The fourth outstanding opinion before the Court is a First Amendment dispute between a Christian law group and a California law school. The Christian Legal Society contends the Hastings College of the Law in San Francisco was wrong in denying equal access to campus resources for a CLS chapter seeking formal recognition. The school’s decision was based on its conclusion that the CLS Statement of Faith violates the school’s nondiscrimination policy. In short, the university argues that since CLS does not allow gays to become voting members it will not give official recognition (and the privileges that come with it) to the CLS students.

The justices are also expected to announce Monday some of the cases they will consider in their next term that starts in October. The Republican National Committee’s challenge to so-called “soft money” ban is the latest attempt to weaken campaign finance laws. The ban prohibits the unlimited and unregulated contribution of money to political groups including parties. The RNC claims the law violates its First Amendment right to Free Speech. The Court’s January decision in another campaign finance case drew a strong rebuke from President Obama and if the Court accepts this case it will no doubt further raise the profile of how to regulate money in federal political campaigns.

Another controversy the Court could announce it’s going to take up involves a 2007 immigration law from Arizona. That measure fines employers who knowingly hire illegal workers. Opponents claim it exceeds the state’s authority over immigration and object to another provision that forces employers to use the federal E-Verify employment database.

The justices could also take up an appeal from the Vatican which claims it should not be subjected to a lawsuit from an Oregon man who says he was sexually abused by a priest in the 1960’s. They may also give consideration to a complex series of cases rooted in the federal government’s prosecution of the tobacco industry. The government wants the high court to further punish the companies with a $280 billion fine. The industry is asking the Court for relief from an adverse 2006 judgment.

The End of an Era

Somewhat lost in the shuffle of the cases and the start of the Kagan hearing is the departure of Justice John Paul Stevens who in April announced his retirement from the Court. Last year Justice David Souter made a brief statement on his final day on the bench and Stevens could do the same Monday. But he may also have the opinion in one of the final cases, if so, his last day will be more than ceremonial.

Stevens was confirmed to the Court in 1975 and is its longest tenured member. His lengthy service on the bench puts him just shy of all-time records which he has steadfastly claimed are insignificant. His stature grew over time and is not widely considered to be the leader of the Court’s liberal wing.

A month ago, his presumed replacement honored Stevens at an event in his hometown Chicago. Kagan said Stevens has “a mind that cuts through glass” and praised him for his ability to listen and supposed independence. She concluded her remarks by saying the “country was fortunate beyond all measure” to have had Stevens serve on the high court for 35 years. There’s no immediate word about what he’ll do in his life off the bench but he’s spent much of his time in recent years at a beachfront condominium in Florida.

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