I plan on being an advocate for the nomination of Elena Kagan to the Supreme Court. My friend and highly respected legal analyst Glenn Greenwald presents the case against her. One important point that I agree with that Glenn makes is:

[T]the evidence that is available strongly suggests that a Kagan-for-Stevens substitution would move the Court to the Right in critical areas. But Kagan's lack of a real record on these vital questions, by itself, should cause progressives to oppose her nomination.

I believe that the confirmation process can address this concern, so long as the approach I have long advocated - that nominees must be obliged to answer substantive questions on issues from the Senate - is adhered to. Failure to answer questions and provide information should be disqualifying. I argued for such a standard when John Roberts was nominated to be Chief Justice.

In any event, read Glenn's piece. It is quite good. I will be publishing a rebuttal in the next day or so.

Speaking for me only

Leave it to Sen. Orrin Hatch to stir up rumors and serve up distraction, this time, with comments about whether Obama would nominate Hillary Clinton for the Supreme Court. Hatch says it's possible.

Stay focused, people. It's not going to happen.

Many legal observers expect the President to nominate Solicitor General Elena Kagan to fill the seat being vacated by retiring Justice John Paul Stevens. As expected, an early salvo has been provided by Glenn Greenwald:

The danger that we won't have such a status-quo-maintaining selection is three-fold: (1) Kagan, from her time at Harvard, is renowned for accommodating and incorporating conservative views, the kind of "post-ideological" attribute Obama finds so attractive; (2) for both political and substantive reasons, the Obama White House tends to avoid (with a few exceptions) any appointees to vital posts who are viewed as "liberal" or friendly to the Left; the temptation to avoid that kind of nominee heading into the 2010 midterm elections will be substantial (indeed, The New York Times' Peter Baker wrote last month of the candidates he said would be favored by the Left: "insiders doubt Mr. Obama would pick any of them now"); and (3) Kagan has already proven herself to be a steadfast Obama loyalist with her work as his Solicitor General, and the desire to have on the Court someone who has demonstrated fealty to Obama's broad claims of executive authority is likely to be great.

I think this is a misreading of Kagan. I will try and offer a cogent rebuttal in the next few days. But in the meantime, Greenwald begins to develop what will be the principal case against Kagan from the Left - her supposed fealty to Executive Branch power. I think this misreads Kagan. I'll try to persuade you tomorrow.

Speaking for me only

Senator Pat Leahy, Judiciary Committee Chair:

When the Supreme Court recesses on Justice Stevens’ final day on the bench, it will mark the end of an extraordinary judicial career spanning four decades, including 35 years on our highest court.

The last Justice from “the Greatest Generation,” John Paul Stevens first answered the call to service when he joined the Navy during World War II. Our nation called on him again years later, and he returned to public service as an appellate judge before accepting President Ford’s nomination to serve on the Supreme Court. He has since become one of the longest serving Justices on the Court. His confirmation was the first of a dozen Supreme Court nominations I have considered in my years in the Senate. As a young, freshman senator, it was a privilege to support his confirmation in 1975.

[MORE . . .]

The AP and MSNBC are reporting that Justice John Paul Stevens will be retiring this year from the SCOTUS. From the SFChronicle.

Let me be the first to say NO TO SUNSTEIN!

Also, a proper tribute post to Justice Stevens, who was an excellent Justice imo, will be forthcoming in a few days.

Taking a look at the names most frequently mentioned as a possible replacement for Justice John Paul Stevens who is widely expected to retire this year or next, prospects aren't looking good for progressives.

Elena Kagan and Merrick Garland seem to be at the head of the pack. Garland, now on the D.C. Circuit Court of Appeals, is a former DOJ top prosecutor (Associate Deputy Attorney General) who supervised the Oklahoma City Bombing case. Conservatives would welcome him since he's known for siding with the Government in criminal cases and tough on terrorism. He's been called the Democratic version of John Roberts.

The third person who appears to be in the running is Judge Diane Wood of the 7th Circuit, who is considered more progressive than Kagan or Garland. (She, too, is a former prosecutor -- deputy assistant attorney general under President Bill Clinton.)

Republicans are trying to influence the decision already, promising "bruising battles" and saying Garland is his best bet. Why does Obama have to play it safe? He's already got his "signature issue" -- the health care vote -- behind him. He really has an opportunity here to effect some change, one that could last decades. I hope he doesn't throw it away. And can we please have someone who didn't spend decades working for the Justice Department?

The Supreme Court took a big step forward today and ruled that defense counsel must advise clients of adverse immigration consequences to their guilty pleas. The case is Padilla v. Kentucky, the opinion is here. Even Roberts and Alito concurred (Scalia and Thomas dissented.) The holding:

The lawyer for an alien charged with crime has a constitutional obligation to tell the client that a guilty plea carries a risk that he will be deported. The Court, however, does not decide whether the individual in this specific case has been prejudiced by the lawyer’s failure to give that advice.

[More...]

All lawyers remember their first encounter with Erie v. Tompkins, a staple of the first year of law school. Erie still reverberates for substantive reasons as well. Via Volokh, we see that that the Supreme Court has handed down the latest on Erie questions in Shady Grove v Allstate (PDF), though the Court's fractured opinion (with interesting alliances) leaves things quite muddled :

JUSTICE SCALIA announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II–A, an opinion with respect to Parts II–B and II–D, in which THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE SOTOMAYOR join, and an opinion with respect to Part II–C, in which THE CHIEF JUSTICE and JUSTICE THOMAS join. [. . .] JUSTICE STEVENS, concurring in part and concurring in the judgment. [. . .] JUSTICE GINSBURG, with whom JUSTICE KENNEDY, JUSTICE BREYER, and JUSTICE ALITO join, dissenting.

I'll try and provide a cogent analysis later today for the 2 readers interested. I happen to like these kinds of cases.

The Supreme Court held oral arguments today in Dillon v. U.S., which I described here.

The transcript of today's argument is here. Via Peter G. in comments,

Justice Kennedy got in the face of an Asst to the Solicitor General (with SG Kagan sitting there) about the fact that there were no Presidential sentence commutations or other clemency grants last year, none, and only five the year before (page 39 of the linked transcript).

Another case heard by the Supreme Court today was Barber v. Thomas, (transcript here) about whether the Bureau of Prisons is cheating prisoners in the way it calculates good time credits. [More...]

On Tuesday, the Supreme Court will hear oral arguments in a crack cocaine case. The case is Percy Dillon v. U.S., and the issue is whether the two level reduction in federal sentencing guidelines for crack cocaine implemented a few years ago allows judges, when implementing the reduction, to conduct a complete resentencing.

Many defendants were sentenced to huge terms of imprisonment for crack when the guidelines were mandatory. Since Booker in 2005, they have become discretionary. So when a defendant files a motion to have his or her sentence reduced under the guideline amendment, shouldn't the Judge be allowed to resentence under current law, treating the guidelines as advisory only? Put another way, shouldn't Booker be followed for sentencing modification decisions?

The case could have big ramifications: [More...]

Tony Mauro writes at Law.com that Obama is ready with a short list of replacement candidates if Justice John Paul Stevens retires. Who's on it?

The list includes Solicitor General Elena Kagan, appeals court Judges Diane Wood and Merrick Garland, and Homeland Security Secretary Janet Napolitano.

Janet Napolitano? Ugh, I hope not.

Justice John Paul Stevens, who turns 90 on April 20, discusses his retirement plans in a New Yorker interview with Jeffrey Toobin. He says he's keeping his options open and will decide in about a month.

Sounds like he's planning a retirement announcement for his birthday. But he cautions against reading too much into his decision to hire only one law clerk. His other three clerks offered to stay with him. So he only needs one new clerk.

If he retires, then what? Will Obama name a safe choice to avoid a confirmation battle? Or will he show some spunk and name a true progressive?