The BLT: The Blog of Legal Times

Kagan Says She Appreciates Relentless Questioning

Elena Kagan had never argued in an appellate court prior to her confirmation as solicitor general. She apparently has enjoyed it.

In her opening remarks at her confirmation hearing for the Supreme Court, Kagan spoke today for one of the few times publicly about her time as solicitor general. She said she had been challenged by the justices, and she heaped praise on them for their thoroughness in questioning lawyers at oral argument.

“In no other place I know is the strength of a person’s position so tested and the quality of a person’s analysis so deeply probed. No matter who the lawyer or who the party, the Court relentlessly hones in on the merits of every claim and its support in law and precedent,” she said.

Kagan has never been a judge, so it’s impossible to know how relentless she would be if she is confirmed. As solicitor general, she has had an easy banter with the justices and drawn praise from some other advocates. She’s also made some missteps, as The National Law Journal reported in May.

In her 15 months on the job, Kagan has argued six cases, winning three and losing two. The sixth was later dismissed as improvidently granted.

She told the Senate Judiciary Committee that the experience has strengthened her belief in the Court. “I always come away from my arguments at the Court with a renewed appreciation of the commitment of each justice to reason and principle — a commitment that defines what it means to live in a nation under law,” Kagan said.

Graham Signals Willingness to Support Kagan

Sen. Lindsey Graham (R-S.C.) was the only Republican on the Senate Judiciary Committee to support the nomination of Justice Sonia Sotomayor a year ago. Today, he continued to drop hints that he might be willing to vote for Elena Kagan, too.

Graham told Kagan at her confirmation hearing that “there’s no doubt in my mind that you’re a liberal person.” But, he added, “That applies to most of the people on the other side. I respect them and I respect you.”

He said that “elections have consequences” — a phrase that Republicans used often during George W. Bush’s administration to emphasize the president’s power to nominate.

“What did I expect from President Obama? Just about what I’m getting,” Graham said. “A lot of people are surprised. Well, you shouldn’t have been, if you were listening.”

Graham, a key senator on the legal issues surrounding the detention of suspected terrorists, said he planned to question Kagan on that subject. He said Kagan is especially qualified to discuss it. “You, in my view, have a potential teaching opportunity, even though you’ve never been a judge, because you represented this country as solicitor general in a time of war,” Graham said.

Legal VIPs Show Up for Kagan Hearing

The front row of Elena Kagan's confirmation hearing is filled with some of the top lawyers in the Obama administration.

Just over Kagan's left shoulder — visible on the right side of the television screen when the camera is focused on her — is Philip Schiliro, who is President Barack Obama’s chief adviser for legislative affairs. To his left is Susan Davies, a deputy White House counsel who leads the administration’s process for selecting federal judges. And to her left is Chris Kang, one of Schiliro’s deputies.

All three traveled around Capitol Hill with Kagan as she met with senators over the past month. And all three are former congressional staff members: Schiliro as chief of staff to Rep. Henry Waxman (D-Calif.), Davies as Democratic general counsel to the Senate Judiciary Committee, and Kang as a counsel and aide to Sen. Dick Durbin (D-Ill.).

Also sitting in the front row are Acting Solicitor General Neal Katyal, who has served as Kagan’s chief deputy, and White House Staff Secretary Lisa Brown, a former executive director of the liberal American Constitution Society.

Former Acting Solicitor General Walter Dellinger, who often advises the Obama White House, has been sitting in the second row. John Marshall, son of the late Justice Thurgood Marshall, is also in attendance, Sen. Patrick Leahy (D-Vt.) said. Kagan clerked for the elder Marshall.

Senators Get Parochial at Kagan Hearing

The Supreme Court is losing some its geographic diversity as Elena Kagan prepares to become the fourth sitting justice from New York City, replacing Illinois native Justice John Paul Stevens. Members of the Senate Judiciary Committee have noticed.

Sen. Russ Feingold (D-Wis.) said at Kagan’s confirmation hearing today that he would like to see “greater diversity on the Court in other ways — including representation from Midwestern and Western states.”

“It is important that all Americans feel the Court represents their life experiences and their values,” Feingold continued, “and I think one of the best ways to accomplish that is by selecting candidates for this position who reflect the full diversity of this great country.”

Sen. Jon Kyl (R-Ariz.) chimed in with a reference to the 2006 retirement of Justice Sandra Day O’Connor, a former Arizona state judge and state senator. “I notice it’s been [four] years now since we had an Arizonan on the Court,” Kyl said, prompting some laughter in the audience.

President Barack Obama’s first nominee to the Court, Justice Sonia Sotomayor, is also a native New Yorker. Of the previous two successful nominees, Justice Samuel Alito Jr. is from New Jersey while Chief Justice John Roberts Jr. grew up in Indiana but spent almost his entire adult life in Washington.

The other New Yorkers: Justices Ruth Bader Ginsburg and Antonin Scalia.

Bilski Ruling Continues Battle Over Business Patents

Reaction is already beginning to pour in to the Supreme Court's decision today in Bilski v. Kappos, the long-awaited decision on the patent eligibility of business methods or processes that are not tied to a new machine or don't transform anything.

Justice Anthony Kennedy's majority decision agreed with the U.S. Court of Appeals for the Federal Circuit that the specific patent at issue -- a way of hedging against weather-related losses in the energy industry -- should not have been granted. All nine justices agreed that it was too abstract for patentability. But for a smaller majority, Kennedy did not rule out all business methods patents, and invited the federal circuit to keep trying to find a better test than the "machine or transformation" test, which he relegated to the status of a "clue" but not the only test.

Four justices, led by Justice John Paul Stevens, said that methods of doing business should never be patentable. They expressed "serious doubt" that business innovators need patents to succeed. It had the look of a writing that could have started out as a majority opinion, but lost its fifth vote. Stevens, who was joined by justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, called the majority a "tepid disposition" of the case.

Tepid enough, apparently, that even the lawyer for the patentholders Bernard Bilski and Rand Warsaw did not concede total defeat. Finnegan Partner J. Michael Jakes, who argued the case for the patent holders, said, “We are disappointed by today’s decision because we believed the Bilski/Warsaw claims should be patentable under the broad language of the Patent Act." But Jakes said he would work with his clients to revive their patent claim to meet the new guidance provided by the Court.

Kagan Met With Obama This Morning

Supreme Court nominee Elena Kagan made a detour today on the way to the Senate Judiciary Committee.

Before the beginning of her confirmation hearing, Kagan stopped by the Oval Office for a meeting with President Barack Obama, a White House official said, speaking on condition of anonymity. Obama, who out of town this weekend meeting with other world leaders in Toronto, Canada, wanted to offer encouragement and wish her good luck, the official said.

In opening statements this afternoon, senators have invoked Kagan’s close connection to the White House in debating whether she would be a “rubber stamp” for Obama’s policies.

Sessions: Court Is a Bulwark Against Big Government

Sen. Jeff Sessions (R-Ala.) is drawing on public discontent with Washington as he makes an argument for a more conservative Supreme Court.

Sessions, in an opening statement at Elena Kagan's confirmation hearing, decried what he called “one of the largest expansions of government power in history,” saying it had happened without the support of voters. The ranking Republican on the Senate Judiciary Committee, Sessions questioned whether Kagan would allow the expansion to continue.

“We’ve watched,” he said, “as the president and Congress have purchased ownership shares in banks, nationalized car companies, seized control of the student loan industry, taken over large sectors of our nation’s health-care system, and burdened generations of Americans with crippling debt.”

He continued: “Our legal system does not allow such an approach. Americans want a judge that will be a check on government overreach, not a rubber stamp.”

Leahy: Kagan Will Be No Rubber Stamp

Sen. Patrick Leahy (D-Vt.) opened Supreme Court nominee Elena Kagan's confirmation hearing today with a defense of her future independence.

Kagan has faced some scrutiny from conservatives about how independent she will be from the Obama administration, especially on issues, such as health-care, that have been central to its agenda. As solicitor general, Kagan has been the government’s chief advocate before the Supreme Court, and previously, her academic work focused on White House influence over the executive branch.

Leahy, the chairman of the Senate Judiciary Committee, said concerns along those lines are unwarranted.

“I welcome questions to Solicitor General Kagan about judicial independence, but let us be fair. Let us listen to her answers,” he said in his opening statement. “There is no basis to question her integrity and no one should presume that this intelligent woman, who has excelled during every part of her varied and distinguished career, lacks independence.”

Justice Stevens' Farewell Letter

Following is the text of the letter Supreme Court Justice John Paul Stevens read from the bench this morning thanking his colleagues for their warm wishes on his retirement, which begins tomorrow. Before reading, Stevens noted that when he joined the Court in 1975, a letter like his could have been addressed to "Dear Brethren." But with two women on the Court, Stevens decided "Dear Colleagues" would be appropriate.

Dear Colleagues,

Collegiality and independence characterize our common endeavor. I thank you for your kind words. Far more importantly, Maryan and I thank each of you and each of your spouses -- present and departed -- for your warm and enduring friendship.

It has been an honor and a privilege to share custodial responsibility for a great institution with the eight of you and with ten of your predecessors. I have enjoyed working with each of you and with every member of the Supreme Court work force that has always taken such excellent care of the Justices. If I have overstayed my welcome, it is because this is such a unique and wonderful job. I wish you all the best.

Most sincerely,

John

Emotional, Historic Morning at the Supreme Court

On a memorable morning at the Supreme Court today, the justices said farewell to Justice John Paul Stevens on his final day before retiring, noted the death of Justice Ruth Bader Ginsburg's husband Martin, and issued landmark opinions expanding Second Amendment rights, disallowing the Bilski business methods patent, and striking down a part of the Sarbanes-Oxley Act. The Court also denied review in seven petitions filed by tobacco companies and the U.S. government challenging different parts of a lower court ruling holding tobacco companies liable under federal racketeering laws for decades of deception about the dangers of cigarettes.

Justice Ginsburg, whose husband died Sunday, was on the bench as usual as Chief Justice John Roberts Jr. opened the session by saying he had the "very sad duty" of reporting that Martin Ginsburg, a tax law expert and teacher, had died. Roberts spoke of Ginsburg's "sharp wit and engaging charm," and said Martin Ginsburg had become friends with all the justices.

Then it was on to the lengthy announcement of the opinions -- the three mentioned above as well as a fourth, Christian Legal Society v. Martinez, in which the Court upheld a state university law school's anti-discrimination policy that requires recognized student groups to allow "all comers" to join. Justice Ginsburg read from her opinion.

Justice Samuel Alito Jr. read at length from his 45-page opinion in McDonald v. Chicago, which ruled that the individual right to bear arms articulated two years ago in D.C. v. Heller applies fully to state and local regulations -- though he added the right is "not unlimited." Justice Stephen Breyer read from his dissent, as he did with a dissent in Free Enterprise Fund v. Public Company Accounting Oversight Board.

Justice Anthony Kennedy read from Bilski v. Kappos, in which the Court majority struck down the specific patent at issue, but did not rule out patent eligibility for other kinds of business methods. Stevens read from his concurrence, criticizing the Court ruling which he said will "cause mischief" by leaving open the possibility of patentability for intangible methods and processes.

The reading of summaries of all four opinion took more than an hour, making for an unusually long session of the Court. Then came announcement by Roberts that Frank Wagner, the Court's longtime reporter of decisions, was retiring.

Finally, it was time for Roberts to read the Court's farewell letter to Stevens, who retires tomorrow after 35 years as a justice. Stevens' departure "saddens each of us," Roberts said, also mentioning Stevens' "resolute commitment to justice." Roberts offered Stevens "time for rebuttal," and Stevens read from his own letter thanking his colleagues for "warm and enduring friendships" they had shared. Stevens' voice seemed to crack, but by the end of the statement he was smiling.

In the audience, several lawyers and some journalists sported bow ties as a tribute to Stevens' trademark neckwear. Some of his former law clerks were also in the Court. A further tribute to Stevens is expected later today, when the current law clerks will also produce their annual skits to spoof and celebrate their year at the Court.

Check back here and at nlj.com later today for more on the Supreme Court's action.