Justice Breyer: I'll go to State of the Union
Supreme Court Justice Stephen Breyer said Sunday that he will attend the upcoming State of the Union address, even as more conservative justices have been critical of what happened at the last one.
Justices John Roberts and Samuel Alito have complained that President Obama, in last year's address, criticized the court on o ne of its decisions, even as the justices are expected to sit there expressionless.
Alito, at one point, mouthed the words "not true" when Obama criticized the court for "opening the floodgates" to corporate money in elections through its decision in the Citizens United case.
Breyer, who agreed with Obama on the Citizens United case and comes from the court's liberal wing, said he will still attend the speech, as he has throughout his tenure on the court.
"I'll go next year; I've gone every year," Breyer said during an appearance on "Fox News Sunday." "I think it's very, very, very important - very important -- for us to show up at that State of the Union, because people today are more and more visual."
Breyer declined to pass judgment on Roberts for criticizing Obama. But he said Supreme Court justices should be present at the address.
"What (people) see in front of them at the State of the Union is that federal government," Breyer added. "And I would like them to see the judges too, because federal judges are also a part of that government."
Breyer is promoting a new book that describes his judicial philosophy.
Laurence Tribe unfiltered on Sonia Sotomayor
By Al Kamen
Harvard Law Professor Laurence H. Tribe minced no words in a May 2009 letter to his former student, President Obama, urging Obama to nominate Harvard Law Dean Elena Kagan to fill retiring Justice David Souter's seat on the Supreme Court.
The goal should be to keep Justice Anthony Kennedy "from drifting" to the right, Tribe wrote, which is something Souter was able to do.Continue reading this post »
McConnell gives Franken a piece of his mind
By Paul Kane
Senate Minority Leader Mitch McConnell (R-Ky.) gave freshman Sen. Al Franken (D-Minn.) a piece of his mind Thursday afternoon, believing that the former comedian had mocked McConnell's floor speech opposing the confirmation of Elena Kagan to the Supreme Court.
In the final moments of debate, Franken was the presiding officer over the chamber -- just as he was when Justice Sonia Sotomayor was confirmed almost a year ago to the day. During McConnell's roughly 10-minute speech, according to observers, Franken was shifting in his seat and, McConnell believed, gasping and mocking his speech. Once he finished his speech, McConnell left the GOP leader's podium and walked around the main desk of the Senate, waving to Franken so the two could speak, observers said.
"This isn't 'Saturday Night Live,' Al," McConnell told Franken sternly, according to those familiar with the exchange.
Franken, a former writer and actor on NBC's late-night comedy show, has spent most of his first year in the Senate trying to be a serious legislator, declining to talk to national press on almost every issue.
Franken told Politico he tried to apologize later in person in McConnell's office. "The leader thought I was disrespectful while he was giving his speech on General Kagan," Franken said in a statement. "He is entitled to give his speech with the presiding officer just listening respectfully. I went directly to his office after I was done presiding to apologize in person. He wasn't there, so I've sent him a handwritten note."
ABC26 WGNO: Clarence Thomas's nephew allegedly tased at Louisiana hospital
ABC 26 WGNO reports:
MARRERO - Family members of Derek Thomas, nephew of U.S. Supreme Court Justice Clarence Thomas, are alleging that the younger Thomas, was punched and tased when he was admitted to West Jefferson Hospital Thursday.
The family says the use of the taser caused Thomas to have a seizure.
According to at statement from the family, Derek Thomas, who is epileptic, refused to put on a hospital gown and tried to leave his examination after a possible suicide attempt. They say security "punched him in his lip, pulled out more than a fistful of his dreadlocks and tasered him to restrain him."
Doctors knew about Thomas' epilepsy, but ordered security officers to use the taser anyway, instead of sedating him, the family says.
The family is trying to have Thomas transferred to another facility.
Justice Thomas is expected to travel to New Orleans as soon as possible to check on his nephew.
Court won't hear soft-money challenge
The Supreme Court on Tuesday decided that it would not undertake another review of the McCain-Feingold campaign finance reform act, rejecting a Republican-sponsored challenge to the law's centerpiece prohbition on unregulated "soft money" contributions to political parties.
The court did not explain its decision upholding a lower court's dismissal of Republican National Committee v. Federal Election Commission. Three justices--Antonin Scalia, Anthony M. Kennedy and Clarence Thomas--said they would have accepted the case for review, but four justices must be willing to do so in order for the court to take a case.
The decision by the majority avoids another showdown on campaign finance regulation, an issue that has sharply divided Democrats and Republicans. The court ruled 5 to 4 in upholding McCain-Feingold shortly after it was passed in 2002, saying soft-money contributions had led to the national political parties "peddling access" to elected officials.
But Rick Hasen, an expert on campaign finance law at Loyola Law School in Los Angeles, said he believes the court's reluctance to look at the soft-money question may not last forever. "I had been predicting the summary affirmance for some time--this was just a very weak case for overturning the ban," Hasen wrote on his Election Law Blog.
Kagan hearings witness list released
The Senate Judiciary Committee has announced the witness list for Elena Kagan's Supreme Court confirmation hearings, which are scheduled to begin Monday at 12:30 p.m.
American Bar Association Witnesses
Kim Askew, Chair of Standing Committee
William J. Kayatta, Jr., First Circuit Representative
Professor Robert C. Clark, Harvard University Distinguished Service Professor, Austin Wakeman Scott Professor of Law, and former Dean, Harvard Law School
Justice Fernande "Nan" Duffly, Associate Justice, Massachusetts Court of Appeals, on behalf of the National Association of Women Judges
Greg Garre, Partner, Lathan & Watkins, former Solicitor General of the United States
Jennifer Gibbins, Executive Director, Prince William Soundkeeper
Professor Jack Goldsmith, Professor of Law, Harvard University
Marcia Greenberger, Founder and Co-President, National Women's Law Center
Jack Gross, plaintiff, Gross v. FBL Financial Services Inc.
Lilly Ledbetter, plaintiff, Ledbetter v. Goodyear Tire
Professor Ronald Sullivan, Edward R. Johnston Lecturer on Law, Director of the Criminal Justice Institute, Harvard law School
Kurt White, President, Harvard Law Armed Forces Association
Elena Kagan in her own words
Updated June 28
Elena Kagan is said by many observers to have left a thin paper trail. Below are some of the more interesting publications, reports and reported remarks that reveal her thinking over the years, compiled from and hosted by a variety of sites around the Web. To add to the paper and video trail, leave links in the comments.
Clinton administration documents:
* 1995-1999. "Elena's Inbox." Sunlight Foundation presentation of e-mails sent by Elena Kagan during her time in the Clinton administration. See also: Five of the most interesting of those e-mails, as selected by The Post.
On the decline of the Socialist Party (Princeton University senior thesis):
* 1981. "TO THE FINAL CONFLICT: SOCIALISM IN NEW YORK CITY, 1900-1933," Elena Kagan. Princeton University History Department. PDF
On gun rights:
* 2009. "Written Questions of Chairman Patrick Leahy For Elena Kagan Nominee to be Solicitor General of the United States." PDF
*1987. Bloomberg News: "Kagan Was 'Not Sympathetic' as Law Clerk to Gun-Rights Argument."
On late-term abortion:
* 1997. "Memorandum for the President: Daschle and Feinstein Amendments," Bruce Reed and Elena Kagan. PDF. See also Washington Post: "Abortion could be sleeper issue in Supreme Court confirmation process"
Kagan on receiving the nomination (White House video):
On standing for the solicitor general post:
* 2009. Public questionnaire for solicitor general nomination. Document reader
* 2009. Written Q&A for solicitor general nomination hearing. Document reader
* 2009. Full Feb 10. hearing. Video
* 2009. Personal financial disclosures. Document reader
On the detention of terror suspects:
* 2009. Sen. Lindsey Graham (R-S.C.) questions Kagan at her confirmation hearing about indefinite detention and whether the United States is at war. Video
* 2005. Letter to Sen. Patrick Leahy (D-Vt.) objecting to court-stripping provisions for detainees at Guantanamo Bay. PDF
On the Supreme Court:
* 2010. "The life and legacy of Associate Justice John Paul Stevens." Remarks at the annual dinner of the Seventh Circuit Bar Association at the Seventh Circuit Judicial Conference. Video
* 2009. Kagan on cameras in the court, remarks at the Ninth Circuit Judicial Conference. Video
* 1995. "Confirmation Messes, Old and New," University of Chicago Law Review. PDF
* 1993. "For Justice Marshall," Texas Law Review. PDF
* 1986. Application and letters in support of a Supreme Court clerkship with Justice Marshall. PDF
Supreme Court in Miranda case: Suspect must invoke right
Updated: 1:40 p.m.
The Supreme Court ruled Tuesday that a criminal suspect must explicitly invoke the right to remain silent during a police interrogation, a decision that dissenting liberal justices said turns the protections of a Miranda warning “upside down.”
The court ruled 5 to 4 that a Michigan defendant who incriminated himself in a fatal shooting after nearly three hours of questioning thus gave up his right to silence, and the statement could be used against him at trial.
“Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent,” Justice Anthony M. Kennedy wrote for the court’s conservatives.
In a separate case, the justices unanimously agreed that a former prime minister of Somalia who now lives in Fairfax County may be sued in U.S. courts by fellow countrymen who claim he oversaw killings and torture in their former home. Mohamed Ali Samantar was part of the country’s ruling government in the 1980s and early 1990s.
In the case about Miranda rights, suspect Van Chester Thompkins remained mostly silent for three hours of interrogation after reading and being told of his rights to remain silent and have an attorney. He neither acknowledged that he was willing to talk nor that he wanted questioning to stop.
But detectives persisted in what one called mostly a “monologue” until asking Thompkins whether he believed in God. When asked, “Do you pray to God to forgive you for shooting that boy down?” Thompkins looked away and answered, “Yes.”
The statement was used against him, and Thompkins was convicted of killing Samuel Morris outside a strip mall in Southfield, Mich.
The U.S. Court of Appeals for the 6th Circuit said that Thompkins’s silence for two hours and 45 minutes of the interrogation “offered a clear and unequivocal message to the officers: Thompkins did not wish to waive his rights.”
But Kennedy said it was not clear enough. “If Thompkins wanted to remain silent, he could have said nothing in response to (the detective’s) questions, or he could have unambiguously involved his Miranda rights and ended the interrogation,” wrote Kennedy, who was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. “The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver.”
Kennedy said the court’s new rule — in the case of Berghuis v. Thompkins — was an extension of the logic in a previous case that said a suspect must affirmatively assert his right to counsel.
But Justice Sonia Sotomayor, in the sharpest dissent of her young career on the court, accused the majority of casting aside judicial restraint and creating a rule that marks “a substantial retreat from the protection against compelled self-incrimination” that Miranda established more than 40 years ago.
“Today’s decision turns Miranda upside down,” wrote Sotomayor. “Criminal suspects must now unambiguously invoke their right to remain silent, which, counterintuitively, requires them to speak.” She was joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer.
In the case of Samantar v. Yousef, the court rejected claims by the former prime minister and defense minister that he is entitled to immunity under the Foreign Sovereign Immunities Act. That act protecting “foreign states” from lawsuits does not include individuals, the court ruled.
The court said its finding is narrow, but that a lawsuit filed by members of the Isaaq clan, which alleges acts of detention, torture and murder, can go forward.
“Whether petitioner (Samantar) may be entitled to immunity under common law, and whether he may have other valid defenses to the grave charges against him, are matters to be addressed” by lower courts, Stevens wrote.
-- Robert Barnes
Elena Kagan confirmation hearings to begin June 28
Sen. Patrick Leahy (D-Vt.) announced Wednesday that the confirmation hearings for Supreme Court justice nominee Elena Kagan will begin Monday, June 28. The Associated Press reports that "the schedule should allow the hearings to be completed before senators go home for a weeklong break in early July," and then be able to vote before they adjourn for August recess.
At a hearing on Tuesday Leahy said, "this is a reasonable schedule that is in line with past practice."
Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary committee, responded quickly in a statement suggesting the confirmation proceedings begin after the July 4th recess. "At this time, it remains to be seen whether the schedule set by the Chairman will be adequate to allow us to meet our important constitutional responsibility to thoroughly review Ms. Kagan's record on behalf of the American people."
Kagan deputy takes over
By Robert Barnes
Solicitor General Elena Kagan was not at the Supreme Court this morning to hear that she had won one of the cases she argued. And she told the court in a letter that her deputy will take over all filings at the court while her nomination to replace Justice John Paul Stevens is pending.
Kagan told the court that Principal Deputy Solicitor General Neal Katyal will serve as acting solicitor general "in all filings after the date of my nomination involving the United States Government."
If her nomination is successful, Kagan will need to recuse herself from any government appeal she worked on as solicitor general. The move is one way to protect her from any additional conflicts.
The court ruled 7 to 2 Monday in favor of the government in a case that Kagan argued before the high court, United States v. Comstock. The decision by Justice Stephen G. Breyer said Congress did not exceed its power in 2006 by enacting a law providing for the continued detention of sexually dangerous federal inmates who had completed their prison terms.
The court had ruled in 1997 that states had the power to confined dangerous sex offenders in mental institutions after their prison time was over.