The BLT: The Blog of Legal Times

The Morning Wrap

Day Two: U.S. Supreme Court nominee Elena Kagan attempted Tuesday to defuse Republican concerns about her approach to constitutional law and her actions as Harvard Law School dean, The National Law Journal reports.

New Dean: William Treanor, longtime dean of Fordham University School of Law, will become the next top administrator of Georgetown University Law Center, according to The National Law Journal.

Hot Seat: The former leader of the unit that wrecked insurance giant American International Group will testify today before the 10-member Financial Crisis Inquiry Commission, the Washington Post reports.

No Deal: Simmons & Simmons and Mayer Brown have called off merger talks, the two firms said in a joint press statement sent Tuesday, Legal Week reports.

Suburban Spies: In Montclair, N.J., Yonkers and Cambridge, Mass., spy suspects gardened, raised children, loved dogs and had neighbors who suspected nothing, reports The New York Times.

Kagan Resists Giving Views on Commerce Clause

The Democrats' newly enacted health-care overhaul appears destined to some to end up before the Supreme Court, because of its mandate that individuals buy insurance. But Elena Kagan isn't about to give her opinion on its constitutionality.

Sen. Tom Coburn (R-Okla.) asked Kagan about the law in a round-about way late today. He gave her a hypothetical: What if Congress passed a law requiring Americans to eat a certain number of fruits and vegetables?

“Do we have the power to tell people what to eat every day?” Coburn asked.

Kagan, who developed federal policy and weighed in on legislation while in the Clinton White House, said the hypothetical law struck her as a “dumb law.” She added, “Courts would be wrong to strike down laws that are senseless just because they’re senseless.”

Not satisfied, Coburn came at the question again, reading from the Federalist No. 44 about limits on the powers of the federal government. He asked what restrictions there are on Congress’ authority to regulate economic activity under the Constitution’s commerce clause.

But Kagan declined to go much further than to cite the Court’s power to strike down laws that fall outside established parameters. “It is absolutely the case that the judiciary’s job, in Marbury v. Madison’s famous phrase, to say what the law is,” Kagan said.

Miguel Estrada's D.C. Circuit Nomination, Revisited

Elena Kagan said today she would have supported the nomination of her friend Miguel Estrada to a federal appellate judgeship, if only Estrada had asked.

Kagan, under questioning from Sen. John Cornyn (R-Texas), noted that she wrote letters of support for two of President George W. Bush’s judicial nominees. They were Michael McConnell, who was confirmed to the U.S. Court of Appeals for the 10th Circuit, and Peter Keisler, who was nominated but not confirmed to the D.C. Circuit.

“If I didn’t with Miguel, it’s because he didn’t ask me to do so,” Kagan said.

The letter may be forthcoming now. Earlier in the day, Sen. Lindsey Graham (R-S.C.) also brought up Estrada’s nomination and asked Kagan whether she would write a letter endorsing him. Kagan said she would do so, and she praised Estrada’s qualifications to be an appellate judge or a Supreme Court justice.

Estrada’s nomination, also to the D.C. Circuit, failed after Democrats blocked several attempts to bring it to a vote on the Senate floor. They criticized his views on civil rights and asked to review confidential records from his time in the Solicitor General’s Office, though they had another reason to oppose him, as well: Estrada was viewed as a potential future nominee to the Supreme Court, and he could have been the first Hispanic nominee.

Now back at the Washington office of Gibson, Dunn & Crutcher as a partner, Estrada is co-chair of the firm’s appellate practice.

The subject of his filibustered nomination came up because Estrada and Kagan are longtime friends. They met as students at Harvard Law School, where they were assigned to sit next to each other during their first year, and Estrada has endorsed Kagan’s nomination to the Supreme Court.

Cornyn asked whether Kagan did the same for Estrada after his nomination fight began in 2001. “Did you ever speak out publicly or talk to him privately about his nomination and the fact that he was filibustered seven times?” he asked.

“Senator Cornyn, I would have done whatever he asked me to do, because he’s a great friend and a great person,” Kagan replied, before noting the letters she wrote for McConnell and Keisler.

Kagan did not mention one other similarity between her and Estrada: She was nominated to the D.C. Circuit, too, in 1999, but her nomination failed after Sen. Orrin Hatch (R-Utah), then the chairman of the Senate Judiciary Committee, declined to schedule a hearing.

Drop in Caseload Is a Mystery, Kagan Says

Supreme Court nominee Elena Kagan suggested Tuesday she wants justices to hear more cases each term, saying she wasn't sure why the number has declined in recent years.

"I do generally agree," Kagan said, after Sen. Arlen Specter (D-Pa.) decried the drop.

Kagan recalled her year clerking for Justice Thurgood Marshall during the 1987-88 term, when she said the Court was deciding about 140 cases a year on the merits. That number has dropped by almost half, to 77 signed opinions in argued cases on the merits during the term that ended Monday.

“It is a bit of a mystery, why it’s declined so precipitously,” Kagan said. (In fact, law professors have theorized several possible reasons, including the role of clerks and the varying number of new laws passed by Congress each year.)

Specter cut Kagan off before she could continue. He pressed her instead on whether, if she had been a justice, she would have granted certiorari in a case about the constitutionality of the George W. Bush administration’s program for warrantless wiretapping. Kagan did not answer that question directly.

Judge: 'Powerful' Evidence in Wone Case, But Not Enough

By Jeff Jeffrey and Mike Scarcella

Judge Lynn Leibovitz spent more than an hour reading aloud her 38-page opinion in D.C. Superior Court today.

In finding Joseph Price, Victor Zaborsky and Dylan Ward not guilty on all counts, Leibovitz said that, while prosecutors had provided “powerful” evidence suggesting that one of the three housemates either stabbed Washington attorney Robert Wone or knows who did, the government failed to prove “beyond a reasonable doubt” that they intended to disrupt the investigation into Wone’s death.

The judge’s verdict marks the conclusion of the criminal case that has transfixed Washington for the past four years.

The three men faced charges of obstruction of justice and conspiracy to obstruct justice. Price also faced a charge of tampering with evidence. Leibovitz dismissed the tampering charge against Zaborsky and Ward on June 17, saying there was no evidence that they touched the knife or the victim, the evidence in question on the tampering count. Nobody has been charged with Wone’s murder.

The judge told a packed courtroom today that it is “very probable that the government’s theory is correct—that, even if the defendants did not participate in the murder, some or all of them knew enough about the circumstances of it to provide helpful information to law enforcement and have chosen to withhold that information for reasons of their own.” But, as Leibovitz pointed out, “probable” is not “beyond a reasonable doubt.”

Neustar Adds FCC's Goldberger as VP of Regulatory Affairs

Neustar Inc. has added Federal Communications Commission veteran Aaron Goldberger as vice president of regulatory affairs.

Goldberger most recently served as senior legal advisor to the bureau chief in the FCC's Wireless Telecommunications Bureau.

At Sterling, Va.-based Neustar, his primary responsibility will be to represent Neustar and its subsidiaries before the FCC, industry organizations, public policy forums and associations and coalitions.

The company operates authoritative databases for virtually all telephone numbers and area codes for the United States and Canada and manages the authoritative directories for the .us. and .biz Internet domains, as well as Common Short Codes used by the wireless industry to facilitate text messaging.

Goldberger began working at the FCC in 1999. Prior to his work in the Wireless Telecommunications bureau, he served as legal advisor to FCC Chairman Kevin Martin, senior legal advisor to FCC Commissioner Deborah Taylor Tate, and acting deputy director of the FCC's Office of Legislative Affairs.

A Few More VIPs at Kagan Hearing

On Monday, we noted some of the top Obama administration lawyers who joined Supreme Court nominee Elena Kagan for her confirmation hearing. Others came today.

Robert Bauer, who became White House counsel in January, has been sitting just behind Kagan’s left shoulder today, making him — or the lower half of his face, at least — visible to those watching on television. Bauer did not appear to be in attendance Monday.

Associate Attorney General Thomas Perrelli, the Justice Department’s No. 3 official and a lawyer with substantial appellate experience, stopped in for part of the morning. As a partner in the Washington office of Jenner & Block, he participated in at least 27 briefs before the Supreme Court. His clients included MGM Studios Inc., in its copyright case against file-sharing company Grokster Ltd., and Michael Schiavo, a Florida man whose decision to take his wife off life support made national news in 2005.

Ronald Weich, the assistant attorney general for legislative affairs, has been at the hearing today, too. He is a former congressional lawyer, working for Senate Majority Leader Harry Reid (D-Nev.), among others.

The audience also includes Charles Fried, who served as solicitor general during the Reagan administration and who was a colleague of Kagan’s at Harvard Law School, and Donald Verrilli, an associate White House counsel who has been mentioned as a possible successor to Kagan as solicitor general. Another former Jenner & Block partner, Verrilli argued the Grokster case before the Supreme Court.

For More on Top Supreme Court Cases, Join Us July 7

Now that the Supreme Court term is ended, analyses (including ours) about the term's trends and highlights will abound. On July 7, NLJ/Legal Times will host a panel discussion at Georgetown University Law Center in D.C. to discuss the term and the Court's future. What's unique about the discussion -- our ninth annual review -- is that all the panelists have argued at least one case in the item under review.

This year, most of the panelists have been involved in some of the top decisions  you've been reading about in recent days and weeks.

O'Melveny & Myers' Sri Srinivasan, who argued and won in the "honest services" fraud case of Skilling v. United States, will be on hand, as will Deputy Solicitor General Michael Dreeben, who argued for the government in Skilling and the other two companion cases on the issue. Jones Day's Michael Carvin  will also join us, in the wake of Monday's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board, which he argued for the fund.  Rounding out the panel is Amanda Leiter of Catholic University's Columbus School of Law. The case in which she argued, Kucana v. Holder, did not make as many headlines, but Leiter clerked for Justice John Paul Stevens and can reflect on his tenure and his departure from the Court, among other topics.

For what promises to be a timely and lively discussion, you can find out more information and purchase tickets here.

Photos From the Kagan Hearing

The National Law Journal's photo editor, Diego M. Radzinschi, has been covering the confirmation hearing of Supreme Court nominee Elena Kagan. Below is a sampling of his work from Monday, the first day of the hearing.

The scene in Room 216 of the Hart Senate Office Building:

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), center, and the committee's top Republican, Sen. Jeff Sessions (R-Ala.), right, greet Kagan:

Sitting in the front row were White House Staff Secretary Lisa Brown and Acting Solicitor General Neal Katyal:

Kagan Disregards Obama View on Empathy

As Justice Sonia Sotomayor did a year ago, Supreme Court nominee Elena Kagan backed away today from President Barack Obama's statements about the role of empathy in judging.

The subject came up at Kagan’s confirmation hearing under questioning from Sen. Jon Kyl (R-Ariz.). Kyl, the Senate’s No. 2 Republican, read part of a 2005 speech in which Obama compared difficult court cases with marathons and said the “last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

Kagan said she does not agree with that analogy.

“Senator Kyl, I think it’s law all the way down,” she said. “The question is what the law requires. Now, there are cases where it is difficult to determine what the law requires. Judging is not a robotic or automatic enterprise, especially on cases that come before the Supreme Court…. But it’s law all the way down, regardless.”

Kyl also read a quotation from Chief Justice John Roberts Jr. at his 2005 confirmation hearing: “If the Constitution says that the little guy should win, the little guy’s going to win in court before me,” Roberts said. “But if the Constitution says that the big guy should win, well, then the big guy’s going to win, because my obligation is to the Constitution.”

“Do you agree with Chief Justice Roberts?” Kyl asked Kagan.

“I do, Senator Kyl,” Kagan replied, without elaborating.