The BLT: The Blog of Legal Times

Professors Sign Up to Advise on Kagan Nomination

This summer, at least two law professors will reprise the roles they had last year in advising the Senate Judiciary Committee about a Supreme Court nomination.

Michael Gerhardt, of the University of North Carolina at Chapel Hill, will assist the committee's Democratic staff regarding Elena Kagan’s nomination, Gerhardt writes in an e-mail. A constitutional law specialist, he did the same for Justice Sonia Sotomayor's nomination and had roles in the confirmation process for Justices Samuel Alito Jr. and Stephen Breyer.

Orin Kerr, of the George Washington University Law School, will advise Sen. John Cornyn (R-Texas), a member of the Judiciary Committee. A specialist in criminal procedure, he pitched in for Sotomayor’s nomination, too. His return this summer was first reported by Politico, and, as Kerr noted Sunday, he’ll have to take a break from blogging for The Volokh Conspiracy.

The two professors are frequently quoted in the media for their expertise on various legal issues.

Obama Sets Deadline for Supreme Court Pick

In response to a question about abortion rights, President Barack Obama said today that the Constitution protects women's "privacy and their bodily integrity" and that he wants a Supreme Court nominee who will interpret the Constitution to account for women's rights.

Obama also said he wants to choose a nominee within the next month.

The president spoke briefly with White House reporters before a meeting with four Senate leaders to discuss potential successors to Justice John Paul Stevens. He took one question, and a reporter asked whether he would be willing to nominate someone who opposes abortion rights.

Obama replied by reiterating his own support for abortion rights and by disavowing “litmus tests around any of these issues,” according to a White House transcript.

“But,” he added, “I will say that I want somebody who is going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women’s rights. And that’s going to be something that’s very important to me, because I think part of what our core Constitution — constitutional values promote is the notion that individuals are protected in their privacy and their bodily integrity, and women are not exempt from that.”

Obama said he hopes to name his choice before May 26, the day that he named Justice Sonia Sotomayor as a nominee last year. “We are certainly going to meet that deadline, and we hope maybe we can accelerate it a little bit so that we have some additional time,” he said.

Click here for video of Obama's remarks today, via C-SPAN.

The Wall Street Journal reported this morning that Obama has begun speaking with potential nominees, though the newspaper said that the conversations are not final interviews.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who attended the White House meeting, released a statement praising the process that Obama is using to select Stevens' successor.

"This President has taken seriously the advice and consent role of the United States Senate in appointing judges to the federal judiciary," Leahy said. "I hope that all Senators will resist hasty reactions driven by the special interests on either the right or the left. I hope that each Senator will instead fulfill his or her constitutional responsibility to fairly consider and evaluate the nominee."

Senate Minority Leader Mitch McConnell (R-Ky.) and Sen. Jeff Sessions (R-Ala.), the Judiciary Committee's top Republican, released a joint statement saying a justice should have an open mind and not be a "rubberstamp."

“When the President selects a nominee," they said, "Senate Republicans will review that nominee’s record diligently and respectfully with the goal of ensuring that the American people can be confident that the nominee will be able to fulfill the judicial oath, which is to ‘faithfully and impartially’ administer justice ‘without respect to persons.’"

Gregory Craig Debriefs on Sotomayor Nomination

After the U.S. Senate confirmed Justice Sonia Sotomayor in August, a debate began over how much influence the National Rifle Association had over the final tally of 68-31. Liberals said the NRA, which opposed Sotomayor, had failed, while conservatives said they were encouraged the gun-rights group even got involved.

Gregory Craig, who helped direct the confirmation as White House counsel, said Tuesday that the NRA opposition certainly hurt.

“I believe that Justice Sotomayor would have received many, many more votes from Republicans in the Senate if the NRA had not, out of the blue, without any warning, opposed her nomination and, with very little justification whatsoever, made the Senate vote on Sotomayor a pro-gun versus an anti-gun vote,” Craig said in a speech at Georgetown University.

Craig, looking tanned after a three-week break that took him to New Zealand, spoke at length about Sotomayor’s nomination in an hour-long discussion. He also touched on other aspects of his year-long time as President Barack Obama’s counsel, a job he left in January. He started Monday as a partner at Skadden Arps Slate Meagher & Flom.

Conservatives have defended the NRA’s decision to get more involved in Sotomayor’s nomination than the group had been in previous Supreme Court nominations. They note, for example, that the Court heard arguments Tuesday in a gun case that could determine whether the right to bear arms is a fundamental right that applies to states and localities.

Craig said he had “no formal or informal notification” of any impending vacancy at the Supreme Court. He would only allude to how the White House learned of Justice David Souter’s plans to retire a year ago. “We heard this message from a reliable source, and we believed it to be true,” Craig said.

Craig Talks About Picking Skadden, Leaving White House

Former White House Counsel Gregory Craig told The National Law Journal today that when he set out to pick a law firm after a year in the White House, it was all about "global reach."

Craig, who will be leading the newly formed global policy and litigation strategy practice group in the Washington office of Skadden, Arps, Slate, Meagher & Flom, said he opted to join Skadden--over returning to his longtime firm Williams & Connolly--because he was looking for a firm with more international reach. Craig said he had spent the last few weeks talking to both Williams & Connolly and Skadden, but decided that Skadden offered a broader range of practices and more international offices, which was a better fit for his new practice.

“Williams & Connolly has been my professional home for the past 30 years,” Craig said. “But its focus is narrower than Skadden’s, which has enormous scope in terms of both clients and in the expertise of the lawyers.”

Craig said a lot of the details about his new practice group haven’t been worked out yet. Things such as the size of the group and the role the practice will play at the firm are still undecided, Craig said. But the practice’s work will be far reaching.

Craig described the practice as a combination of litigation, global policy, strategic planning, crisis management, and corporate work--all with a Washington focus. “It’s a different approach to practicing law,” he said. “It is going to be a large playground to play in.”

Craig is not currently bringing anyone over from Williams & Connolly, but he isn’t ruling it out either. “We’re going to be looking for uniquely qualified people who are well prepared to deal with a multiplicity of practice areas. We’re going to be looking everywhere for talent.”

He said his role at Skadden will be that of an adviser, but he stressed that he will still maintain a hands-on approach to client matters. “Being simply an adviser is not Greg Craig,” he said. “Litigation has always been a big part of my practice, and I’m not setting that aside. If I have to go to court for a client, I’m happy to go to court.”

Of his time in the White House, Craig said he “couldn’t be prouder,” but after a year it was time for him to return to private practice. Despite months of rumors that he was being forced out over the role he played in the Obama administration’s effort to close down the Guantanamo Bay detention camp, Craig said he was not pressured to leave. “I talked to the president on numerous occasions and told him that a year in the White House was about all I could do. He understood that and was fine with it. I was not pressured to leave at all.”

Craig said that while he was White House counsel as well as in the months before Barack Obama was inaugurated, his office was involved in drafting a range of executive orders that he said will have “lasting effects to the benefit of the country.”

“Our office had a terrific record and had an enormous contribution to the president’s first year, not just on national security and Guantanamo but on energy and the environment. I’m very proud of our record,” Craig said.

Craig also oversaw the vetting process for judicial nominations, including 12 nominees to the U.S. courts of appeals and Justice Sonia Sotomayor. “The nominees to the court of appeals are an incredibly diverse group of jurists,” Craig said. “And Justice Sotomayor is not only a remarkably experienced jurist, she’s a wonderful person, so her confirmation is one of the highlights of my time in the White House.”

Nonetheless, Craig said, he’s looking forward to getting back to private practice. Since leaving the White House counsel’s office on Jan. 3, he has been skiing and spending time with his family. “As the president knows, time in the White House is incredibly hard on a family, so I’m looking forward to getting back to work as a lawyer in Washington,” Craig said.

Alito Praises Fidelity to the Law, But Cameras? Maybe Not

Justice Samuel Alito Jr. spoke to the Federalist Society last night, but photos of him doing so are hard to come by. That's because photographers other than the Federalist Society's own were barred from the event.

Keith Appell, a spokesman for the Federalist Society, said cameras were prohibited by Alito's security detail. It was an interesting twist on a night in which Federalist Society co-founder David McIntosh announced to the crowd that James O'Keefe and Hannah Giles, the independent filmmakers who posed as a pimp and a prostitute and videoed ACORN employees giving advice on how to skirt taxes, were in attendance. "You all saw those great videos that brought down the ACORN organization, right? Well, those kids are here," McIntosh said.

Kathy Arberg, the court spokeswoman, said "The justice's policy was that the event was open to still cameras and pencil press," and that the Federalist Society was informed of that policy before the event.

The Nov. 12 barring of cameras came just days after The New York Times reported that Justice Anthony Kennedy's office had insisted on pre-approving a Manhattan high school newspaper’s story about an Oct. 28 talk he gave to a student assembly.

In last night’s speech, Alito spoke of the importance of judges interpreting “what the law is and not what it should be.” He said, “That should be the basic starting point for anyone discussing the role of federal courts. But this basic starting point has been and always will be under attack, sometimes subtly and sometimes overtly.”

Alito stood up for his newest colleague, Justice Sonia Sotomayor, who Alito said had been criticized during her confirmation hearings for repeatedly saying that her tenure on the high court would be characterized by fidelity to the law.

Referring to her opening statement, Alito said, “There was not a word in that statement that was controversial, but that’s not how it was received by her progressive audience.” He cited as an example a post on the Federalist Society’s Web site by Georgetown law professor Louis Michael Seidman, in which Seidman wrote, “I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified.”

“And those were the words of one of her supporters,” Alito said. “I had a lot of opponents, but I never had any supporters like that.”

Alito also referred to the recent decision Ricci v. DeStefano, in which the Court held that the city of New Haven, Conn., violated Title VII by discarding the results of a firefighter promotion test that would have led to no minority promotions. The case became one of the primary themes of Sotomayor’s confirmation hearings because as a judge on the U.S. Court of Appeals for the 2d Circuit, she voted in the city’s favor.

Alito said that, although he disagreed with Sotomayor’s 2d Circuit vote and Justice Ruth Bader Ginsburg’s Supreme  Court dissent, they and other colleagues with whom he has disagreed during his time as a judge, were not “fools or acting in bad faith.” He applauded Ginsburg for not basing her decision on “sympathy” for the plaintiffs.

“Sympathy is not what Ricci, Vargas, or any of the other firefighters have a right to demand,” Alito said. “What they have a right to demand is even enforcement of the law.”

Panel Previews Upcoming Supreme Court Term

A panel of some of Washington’s top legal brass and constitutional law experts gathered at the National Press Club ballroom this afternoon to gaze into their crystal balls and preview some of the top cases coming before the Supreme Court this term, which begins Oct. 5.

Akin Gump Strauss Hauer & Feld partner and frequent Supreme Court litigator Thomas Goldstein moderated the panel, convened by the liberal American Constitution Society for Law and Policy.

Here’s a rundown of a few cases that the experts said could be a big deal this term:

Citizens United v. Federal Elections Commission: Technically an extension of last term and heard in a special session on Sept. 9, this case centers on the whether corporate expenditures in political campaigns can be limited.

Doug Kendall, founder and president of the Constitutional Accountability Center, debated the case with Jones Day partner Michael Carvin. Though both agreed the case is expected to fall on the side of corporations, they disagreed on whether or not that would be good.

Kendall said the likely ruling would be “unleashing corporate campaign expenditures” and “violating the text and principles” of the Constitution.

Carvin, on the other hand, said corporations should and do have the same rights as individuals.

“I don’t think eliminating their core speech rights could be reconciled with any text in the Constitution,” he said.

United States v. Stevens: Paul Smith, a partner at Jenner & Block, said this First Amendment case should be watched closely.

“The U.S. is asking the Supreme Court, for the first time in a quarter century, to make an exception to the free speech clause for (depictions of) animal cruelty,” he said, adding that it’s not clear where the court will stand.

Salazar v. Buono: This case asks whether a war memorial in California—a giant cross—violates the establishment clause. Smith said the decision is up in the air here too.

“I wouldn’t be surprised if we get a very aggressive stand on an establishment clause ruling,” he said.

Black v. United States: This test of the federal law that criminalizes the denial of honest business to the public or an employer could be decided by Justice Antonin Scalia, said Pamela Harris, executive director of the Georgetown University Law Center Supreme Court Institute.

“I think chances are pretty good, with Scalia leading the charge, that the court is going to do something to limit the scope of the statute,” she said. “The question is:  How much?”

American Needle v. NFL: The case questions whether the NFL is a single entity exempt from antitrust law or a group of 32 separate companies—the teams. Morrison & Foerster partner Deanne Maynard said if the Supreme Court rules in favor of the NFL, this case could have wide-ranging implications beyond just sports organizations.

“I think it could affect any kind of joint business venture,” she said. “It could mean that in doing these (joint) activities, the companies are a single entity.”

Justice John Paul Stevens’ potential retirement drew some speculation from the panel, especially Maynard, who said that a woman like Solicitor General Elena Kagan could replace him.

“It’s a very intriguing thought, to me at least, that there would be three women” on the Supreme Court bench, she said.

Of course, the panel said they were eager to see how new Justice Sonia Sotomayor would change the landscape of the court, but Kendall said the real story of this term could be that it becomes an indicator of where Chief Justice John Roberts Jr. will take the court.

“I do think this term is going to be an enormous test for Chief Justice Roberts and the conservatives on the court,” he said. “Citizens United is probably the biggest we’ve seen so far if it goes the way we expect it to.”

Justices, Circuit Judges to Attend Sotomayor Event

This morning's White House reception for Justice Sonia Sotomayor is expected to bring out some legal elite -- mostly from Sotomayor's native New York, but also from Washington and around the country.

Justices John Paul Stevens and Ruth Bader Ginsburg, considered part of the Supreme Court’s liberal wing, are on the guest list as the only other justices expected to attend. Five judges from the U.S. Court of Appeals for the 2nd Circuit, Sotomayor’s prior court, are on the list, as is Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit, himself once a rumored candidate for the Supreme Court.

Other expected attendees are from the civil rights community, academia, and politics.

Sotomayor Confirmed

The Senate has confirmed Judge Sonia Sotomayor to the Supreme Court in a historic vote that will make her the nation’s first Hispanic justice and the third woman appointed to the Court.

Sotomayor, born in New York City to parents who moved there from Puerto Rico, won over nine Republican senators to go with the 59 members of the Democratic caucus who were present. The final margin of 68-31 was larger than the 58-42 vote three years ago for Justice Samuel Alito Jr., but it was still a smaller margin than other justices have received.

The vote gives President Barack Obama’s administration a significant, early win in the judicial confirmation wars. Smaller battles are just over the horizon, as the Senate considers whether to confirm Obama’s first nominees for federal circuit courts.

Sotomayor’s confirmation was never in doubt, even as many Republicans cast her as a judge who would allow personal biases to influence her decisions. Democrats characterized her as a moderate, pointing to her 17-year record as a judge in the Southern District of New York and on U.S. Court of Appeals for the 2nd Circuit.

Sotomayor replaces retired Justice David Souter, who spent 19 years on the Court but submitted his resignation this spring to return to New Hampshire.

No plans for Sotomayor’s swearing-in have been announced, but she is likely to take her seat within days if not hours. She will participate in her first oral argument next month, when the Court rehears the campaign finance case Citizens United v. FEC.

The nine Republicans who supported confirmation included four who are retiring from the Senate, as well as others who have relatively moderate voting records. Their support, as well as the support of conservative Democrats, came despite an announcement by the National Rifle Association that a vote for confirmation would lower the ratings the NRA gives them.

Debate lasted parts of three days, as senators reiterated arguments they have been making for months. In the end, they returned to analyzing the statements of a former colleague, President Barack Obama, endorsing the role of empathy in a judge’s decision-making.

“The power to rule on empathy is the power to rule on prejudice. And the power to deny the rights of some is the power to deny the rights of any, or all,” said Sen. Jeff Sessions (R-Ala.), the top Republican on the Senate Judiciary Committee. “A judge embraces empathy at the expense of objectivity — and equality and fairness.”

Judiciary Committee Chairman Patrick Leahy (D-Vt.) accused Republicans of misconstruing Obama’s words. “He has never said he would substitute empathy for the rule of law. That’s a false choice. And opposition to this nomination has been based on a false premise,” Leahy said. “Judge Sotomayor reiterated, time and time again during her confirmation hearing, her fidelity to the law.”

The only senator who did not vote was cancer-stricken Sen. Ted Kennedy (D-Mass.), a former chairman of the Judiciary Committee and a central figure in past confirmation fights.

Sen. Al Franken (D-Minn.) announced the final tally from the presiding officer's chair, which freshmen senators typically occupy.

Constitutional Expert Advised Democrats on Sotomayor

Democrats on the Senate Judiciary Committee turned to a trusted ally from academia to advise them on the nomination of Sonia Sotomayor to the Supreme Court.

Michael Gerhardt, a professor of constitutional law at the University of North Carolina at Chapel Hill, worked behind the scenes leading up to the Senate debate this week on whether to confirm Sotomayor. He’s a frequent commentator on Supreme Court nominations and confirmations, as the author of numerous books and law review articles and as a consultant to the Clinton White House during Justice Stephen Breyer’s nomination.

Gerhardt assisted with research on the staff of Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, a Leahy spokeswoman said. He declined to comment on the experience, writing in an e-mail that “my assignment precludes any public commentary.”

His involvement, which appears to have gone unreported so far, became clear Tuesday when he was granted privileges to appear in the Senate chamber during the Sotomayor debate. The granting of “floor privileges” is standard procedure for non-senators.

Gerhardt also had a role in the last Supreme Court nomination, when he testified (pdf) before the Judiciary Committee at the confirmation hearing for Justice Samuel Alito Jr. At the time, he told senators — including Democrats contemplating voting against Alito’s confirmation — that they should feel free to base their votes on any factors they consider pertinent, including judicial philosophy.

This summer, Gerhardt was not the only academic advising a member of the Judiciary Committee. As previously reported, Sen. John Cornyn (R-Texas) brought on Orin Kerr, a specialist in criminal law at George Washington University.

Sotomayor Debate Begins After Focus on Agriculture

The full Senate has begun its official debate on whether to confirm Judge Sonia Sotomayor to the Supreme Court, after spending much of the last two days on a bill about agricultural spending.

The debate is scheduled to continue through most of the week. Because senators want to leave Washington to begin their August recess by this weekend, the debate will likely last less than the four days Republicans had hoped to spend on it. A vote to confirm Sotomayor is likely near the end of the week.

Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, began the debate with harsh criticism of the Supreme Court’s five-member conservative majority. He listed several recent cases in which the justices struck down the actions of Congress or other elected bodies, including cases related to employment protections and school desegregation. Sotomayor would be a counterweight to that majority’s “judicial activism,” he said.

“No one has pointed to decisions [by Sotomayor] that evidence bias. No one has shown any pattern of her inserting her own personal preferences into her judicial decisions,” Leahy said in his prepared remarks. “No one can, because it does not exist. That is not who she is, nor the type of judge she has been.”

Sen. Jeff Sessions (R-Ala.), the Judiciary Committee’s top Republican, said Sotomayor has failed to be objective in cases related to property rights and gun rights.

“Judge Sotomayor’s expressed judicial philosophy rejects the ideal of impartial and objective justice,” Sessions said in his prepared remarks. “Instead, her philosophy embraces the impact gender, background, personal experience, sympathies, and prejudices — these are her words — have on judging.”