Facebook Case Tests Scope of ‘True Threat’

This article first appeared in the April 7, 2014, issue of the National Law Journal’s Supreme Court Brief.

A man convicted of making threats using Facebook has asked the U.S. Supreme Court to resolve a circuit split over what constitutes a “true threat.”

Under the pseudonym “Tone Dougie,” Anthony Douglas Elonis posted violent content on Facebook about his wife and others, often in the form of rap lyrics.

Elonis was convicted under 18 U.S.C. § 875(c), which makes it a federal crime to transmit “any threat to injure the person of another” in interstate commerce. There are comparable state laws.

The U.S. Court of Appeals for the Third Circuit rejected Elonis’ appeal.

In February, the University of Virginia School of Law’s Supreme Court Litigation Clinic filed a petition for certiorari on behalf of Elonis. John Elwood, a Vinson & Elkins partner and clinic instructor, is the counsel of record. Elwood is also a former assistant to the solicitor general and clerk to Justice Anthony Kennedy.

The brief in opposition is due April 21, so the justices could act soon on the petition.

Virginia v. Black, a 2003 Supreme Court opinion about cross burning, held that when a “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” that is a true threat (emphasis added). Such threats are not protected speech under the First Amendment.

The petition outlines a split among federal courts of appeals and state high courts over Black’s true threat definition. One interpretation focuses on the speaker, while the other focuses on the speaker and the listener.

Does the phrase “means to communicate” require that the speaker subjectively intend a threat, or is it enough that the message sent comes across objectively as a threat?

The petition also notes that at least eight state high courts are in conflict with the federal courts of appeals covering their regions. For instance, the First Circuit utilizes an objective test, while Massachusetts and Rhode Island follow a subjective one. State-federal conflicts are present in the Second and Ninth Circuits, too, the petition reports.

The Third Circuit applied the objective test, the majority view, to uphold Elonis’ Facebook convictions.

In his petition, Elonis argues for the subjective test, submitting that he was just using Facebook therapeutically, as his marriage had broken up and he had lost his job. The Facebook posts, the petition contends, “certainly involve no more violent imagery than songs by any one of scores of popular rappers, including the Eminem songs about the rapper’s ex-wife that inspired several of petitioner’s posts.”

In his Facebook posts, Elonis brought up the First Amendment, linking to a Wikipedia entry on freedom of speech. In one post, he wrote, “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?”

The petition includes a rudimentary description of Facebook, a subtle recognition of the justices’ admitted lack of online savvy: Users have “a home page on which the user can post comments, photos, and links to other websites.” They “may become ‘friends’ with other users.”

Justice Elena Kagan has said that the justices do not even use email.

Kagan: 'Too Soon' for a Bobblehead

This article first appeared in the February 12, 2014, issue of the National Law Journal’s Supreme Court Brief.

*Photo credits below

Speaking to an audience in Washington, D.C., Justice Elena Kagan recently reflected on her future legacy—and a possible Kagan bobblehead.

The occasion was a February 5 luncheon where Judge Sri Srinivasan of the U.S. Court of Appeals for the D.C. Circuit was honored with the J. Reuben Clark Law Society’s Rex Lee Advocacy Award.

During a question and answer period, I asked Kagan how she would like to be remembered and, on a related, but more whimsical note, what she would like on her future bobblehead. The popular figures of Supreme Court justices, distributed by the Green Bag law journal, feature visual references to justices’ important opinions.

“I don’t have ambitions to lay down some marker in a particular field of law,” Kagan replied. There is no: “I want to be a great First Amendment person,” or “I want to have a legacy in Fourth Amendment” for her. “I am taking the cases one by one” and trying “to decide [them] as well and honestly as I can.”

Kagan wants her opinions to be clear, persuasive, and “not awful to read.”

And about her bobblehead?

“Too soon, too soon, too soon,” the justice indicated. “I hope that none of the things that I have written [so far] will make the cut” because there has not been “anything significant enough.”

Responding to another question, Kagan recalled a conversation with Srinivasan and former Solicitor General Paul Clement about different argument styles. The three were on a plane, traveling back from the Sixth Circuit.

“I forget whether it was Paul or Sri who said some people heat up a room, and some people cool down a room,” Kagan offered, noting that superb advocates fit in both categories.

Srinivasan is on the cool side, Kagan observed, “incredibly forceful and persuasive” in giving justices the unadorned “scoop.” Clement uses his own effective approach, she pointed out, bringing “electricity” to the podium.

It “is really important for young lawyers to remember when they start developing their own advocacy style, that you can be great in a lot of different ways,” Kagan explained.

Accepting the Rex Lee award, Srinivasan joked that he has gone from being “an appellate advocate wanna be” as a new law graduate to “already an appellate has been with my most recent appointment.”

Srinivasan joined the D.C. Circuit in May 2013, after a distinguished career as an appellate advocate. At the time of his confirmation, Srinivasan was the Principal Deputy Solicitor General, the number two position in the office, once held by Chief Justice John Roberts. The Senate confirmed Srinivasan to the D.C. Circuit by a remarkable 97-0 vote, and he is often mentioned as a potential Supreme Court nominee.

Srinivasan praised the thirteen prior Rex Lee award recipients, who include several past solicitors general and other appellate luminaries, as “the best of the best” and expressed gratitude that he had worked with eleven of them.

Judge Thomas Griffith, Srinivasan’s D.C. Circuit colleague, introduced Kagan at the luncheon. Srinivasan thanked Griffith for giving him a warm welcome to the court and for his example as a judge.

The annual Rex Lee award is named for the late solicitor general who served in the Reagan administration. His son, Senator Mike Lee (R-UT), was at the luncheon.

Solicitor General Donald Verrilli, Walter Dellinger, Maureen Mahoney, and other well-known appellate attorneys also attended.

James Rasband, dean of the J. Reuben Clark Law School at Brigham Young University, introduced Srinivasan and presented the award.

The J. Reuben Clark Law Society is associated with BYU’s law school and its sponsor, the Church of Jesus Christ of Latter-day Saints. Rex Lee served as president of BYU and as its founding law school dean.

*Photo credits: Nicholas Jepsen for the J. Reuben Clark Law Society
1-Justice Elena Kagan during Q&A
2-Judge Sri Srinivasan and Dean James Rasband, BYU Law School, with the Rex Lee Advocacy Award
Hyatt Regency Washington on Capitol Hill

Laughtergate: The Day the Laughter Died at SCOTUS

This article first appeared in the December 16, 2013, issue of the National Law Journal’s Supreme Court Brief.

Laughter can be serious business at the U.S. Supreme Court, especially on the First Monday in October.

As the new term opened this fall, laughter disappeared from argument transcripts and a mild rumpus ensued on social media. Laughter did make a comeback, but not without some unanswered questions.

“When you read Supreme Court argument transcripts,” Justice Elena Kagan explained to a group of Harvard Law School students in September, “they actually tell you when there’s laughter in the Court” and which justice triggered it.

Jay Wexler, a former clerk to Justice Ruth Bader Ginsburg and now a professor at Boston University School of Law, publishes updated laughter counts for each justice at his @SCOTUShumor Twitter feed, along with commentary.

“Ten o’clock,” Wexler tweeted on Monday, October 7. “I guess #SCOTUS has started up. I can feel the laughter coursing through the countryside. If you’re very still, you can too.”

Kimberly Atkins, who also follows Supreme Court laughter, was in the courtroom. From her @DCDicta Twitter feed that morning, Atkins reported that Chief Justice John Roberts, as well as Justices Antonin Scalia, Stephen Breyer, and Samuel Alito had all gotten laughs.

Problem is, when the transcripts went online later that day, the laughter was missing.

Twitter noticed.

Both Wexler and Atkins tweeted about the A.W.O.L. laughter, and Atkins reiterated: “I heard laughs w my own ears. But if it isn’t in the transcript, is it like a tree falling in a forest?”

Other Twitter users, including myself, joined the discussion through comments and retweets.

Laughter at the Supreme Court has a following. To some, it is like box scores, fun to track. To others, it is a digestive aid that helps dull transcripts go down. It is even fodder for scholars, since laughter gives insight into justices’ personalities and Supreme Court dynamics.

Wexler wondered if “they’ve stopped making the notation. Several possible laugh lines in the transcript.”

Not only was the term new that day, but so was the Clerk of the Court, Scott Harris. His predecessor, William Suter, retired over the summer after more than two decades in the position. Had a new, laughter-free day dawned at the Supreme Court?

That afternoon, I contacted Alderson Reporting, which prepares the transcripts. A company representative indicated by telephone the next day that there was not a new policy; however, he did not explain the laughter void. (Responding to a later inquiry for this story, the Supreme Court’s Public Information Office said: “We don’t know why the omission occurred.”)

“Laughtergate deepens,” Atkins tweeted.

The good news is that laughtergate was mostly short-lived. The next day, laughter showed up in a new transcript. The First Monday transcripts remained somber, though. During the next week, I checked for updates several times. Still no laughter.

Another check in early December revealed that the laughter was back: one laugh each for four justices on the term’s first day, consistent with Atkins’ tweet.

When the laughter returned is fuzzy. Neither Alderson nor the Public Information Office provided an exact date. The office did say that Alderson initiated and made the changes as part of its review process.

So, where do the numbers stand now?

After the “laughtergate fix,” as Wexler called it, he tweeted updated numbers for the term, current through the December sitting. Scalia leads with twenty-two laughs; Breyer is not far behind with twenty. Ginsburg and the famously silent Justice Clarence Thomas are tied for last with zero.

“I check sometimes,” Kagan told the Harvard Law students, with a slight grin, speaking of the laughter tallies.

For more justices’ comments on the subject, see Wexler’s collection at his website.

Unlikely Lame-Duck Vote in 1980 Still Reverberates

This article first appeared in the December 19, 2012, issue of the National Law Journal’s Supreme Court Insider.

Thirty-two years ago this month, one day after John Lennon was killed, the Senate confirmed Stephen Breyer to serve on the U.S. Court of Appeals for the First Circuit. Looking back, this 1980 vote on a future U.S. Supreme Court justice was remarkable and historic in its timing, speed, and long-term consequences.

In November 1980, Jimmy Carter lost a landslide election to Ronald Reagan, and Republicans won control of the Senate. Just days later, though, President Carter nominated Breyer to the First Circuit, and the lame-duck Senate confirmed him in December.

Citing the Congressional Research Service in a press release two weeks ago, Senator Chuck Grassley noted that, in addition to 2012, “the Senate has confirmed judicial nominees during a lame-duck session in a presidential election year on only three [other] occasions since 1940” (1944, 1980, and 2004).

Breyer was the only judge confirmed in the 1980 lame-duck session; in other words, he was in a category by himself between 1944 and 2004.

Breyer moved from nomination to confirmation in less than a month, which was not completely out of the norm then. Other circuit judges confirmed earlier in 1980 had gotten votes in short order. The Senate confirmed Breyer’s future colleague, Ruth Bader Ginsburg, only two months after her nomination to the D.C. Circuit. Ninth Circuit Judge Stephen Reinhardt was the exception with a nine-month gap.

Today, Breyer’s one-month lag time would be almost unthinkable, particularly for a circuit nominee. President Obama nominated William Kayatta in January of this year for a Maine seat on Breyer’s former court, the First Circuit. Despite support from Maine’s two Republican senators, Kayatta has not yet been confirmed. Two pending circuit nominees have been on hold even longer.

Without the quick, once-in-a-blue-moon vote in 1980, Breyer would have had a long wait for another opportunity. Republicans controlled the White House for the next twelve years.

Breyer served on the First Circuit during that time and beyond, eventually presiding as chief judge when President Clinton nominated him to the Supreme Court in 1994.

Clinton could have nominated Breyer to the Supreme Court without circuit experience, but the odds are against it. The last ten nominees to join the Court, except Elena Kagan, were all circuit judges.

Perhaps Breyer could have been nominated to a circuit court soon after Clinton’s election and had a short stint below. David Souter sat for only five months as a circuit judge before being confirmed to the Supreme Court, as a nominee of President George H.W. Bush.

No one can know for sure what would have happened, because lightning struck for Breyer in 1980, and the rest is history.

So, why did Breyer’s 1980 nomination go through?

Boston Globe articles at the time point to at least two reasons.

Breyer, who was serving as chief counsel to the Senate Judiciary Committee when nominated, impressed senators from both parties.

“It’s a rare personality that can survive two years in Washington and gain the admiration of a liberal Democrat like Edward Kennedy and an arch-conservative like Republican Strom Thurmond,” the Globe explained. However, “Breyer managed to do it.”

The Globe also reported that the two parties may have struck a deal. Republicans would support the Breyer nomination, while Democrats would not push a stack of other pending judicial nominees. Republicans helped force a vote on Breyer when a block was attempted and then helped confirm him.

Why Was an Amicus Appointed in Dorsey and Hill? (Miguel Estrada)

Today, the U.S. Supreme Court appointed Miguel Estrada to defend the judgments below in Dorsey v. United States (11-5683) and Hill v. United States (11-5721). Why was this necessary?

The short answer is that the federal government took a position before the U.S. Court of Appeals for the Seventh Circuit in Dorsey and Hill, won those cases, and then changed its position.

The longer answer is in a "Memorandum for All Federal Prosecutors," from Attorney General Eric Holder, dated July 15, 2011:

Last August . . . the President signed the Fair Sentencing Act of 2010 into law. This new law . . . reduced the unjustified 100-to-1 quantity ratio between crack and powder cocaine sentencing . . . . [Note: Now 18-to-1]

Immediately following the enactment of the Fair Sentencing Act, the Department advised federal prosecutors that the new penalties would apply prospectively only to offense conduct occurring on or after the enactment date, August 3, 2010. Many courts have now considered the temporal scope of the Act and have reached varying conclusions. . . . [Explained further in this post]

In light of the differing court decisions—and the serious impact on the criminal justice system of continuing to impose unfair penalties—I have reviewed our position regarding the applicability of the [Act to persons] sentenced on or after the date of enactment. . . . I have concluded that the law requires the application of the [Act] . . . to all sentencings that occur on or after August 3, 2010, regardless of when the offense conduct took place.

This memo came out after both Dorsey and Hill were decided, in favor of the government's original position. With that change, the judgments below were orphaned and needed an amicus to defend them.

Because the Seventh Circuit was the court below, and Justice Elena Kagan is the circuit justice, she would have made the amicus assignment. Justice Kagan chose her old friend (they sat next to each other as 1Ls), Supreme Court veteran Miguel Estrada.

Three Female Justices: This Isn't Junior High (or Macbeth)

Lately, there have been various news articles highlighting the fact that Justice Kagan did not join Justices Ginsburg and Sotomayor in their recent dissents to denials of certiorari (here) and stay of execution (here).

Ahem.  Why should she?  The three female justices are not a coven or group of junior high girls, where one needs to visit the restroom, all go along.  If Justice Kagan were to agree with colleagues because of their gender, that would be improper.  Per her judicial oath, the deciding factors are "the Constitution and laws of the United States."

One might respond that the news reports were less about gender and more about the significance of Kagan breaking from other liberals.  If that is so, why no headlines about Justice Breyer snubbing Ginsburg and Sotomayor?  He and Kagan were on the same side in the two rulings at issue.

Here's hoping that the novelty of three female justices and "breaking ranks" reporting will pass soon.

First Monday Firsts: An Advocate Interview

Monday was the first day of the 2010 Supreme Court Term, the first day on the bench for Justice Elena Kagan, and the first time three women have sat on the Court.  For at least one advocate, it was also the first time at the Court's lectern.

David Horan, a Yale law graduate and Jones Day-Dallas partner appointed by the Court, argued his first Supreme Court case on Monday, representing petitioner Carlos Rashad Gould in the consolidated cases, Abbott v. United States and Gould v. United States.  Though they deal with statutory interpretation, not typically a headline-grabber, the cases "will resolve an important question of federal sentencing law that has split the circuit courts and ultimately will affect how much time in prison thousands of criminal defendants will serve," per a recent ABA preview (via SCOTUSblog).  Horan, who also represented Gould below in the Fifth Circuit, spoke with me by telephone about his Supreme Court experience.

Along with arguing several times in the Fifth Circuit, as well as clerking there, Horan has also argued in the Eighth Circuit and in Texas state appellate court.  Preparing to appear in these courts and the Supreme Court is similar, he explained, "except when it isn't."  All require delving into the record and case law, anticipating questions, and preparing an effective opening.  One difference is that the prepared opening, depending on the court and case, may need to be more succinct at the Supreme Court, as questions can be expected almost immediately.

In preparing for Monday's argument, Horan found it helpful to make, and stick to, a well-defined plan, mapping out the necessary steps between cert grant and argument.  Part of that plan, which he found invaluable, was speaking with those who have recently made their first Supreme Court arguments.  Also, Horan participated in several moot courts, which revealed possible themes in the Court's questioning.

One interesting dynamic in the actual argument was that petitioners Abbott and Gould split their time, making each moment even more valuable.  Limited time notwithstanding, Horan's impression was that petitioners and the Court raised the key points at issue in the cases.

And what about Justice Kagan and her "first" on First Monday?  Though recused from Horan's case, Kagan was "active and engaged" in the day's other argument, Horan said.

[Disclosure: The author worked at Jones Day when some of Gould's briefs were filed, but had no substantive involvement in them.]

The Haiku Came True: Kagan Through 63-37

The haiku came true.  Elena Kagan "pass[es] the Senate," by a vote of 63 to 37.

Letter from Elena Kagan About Miguel Estrada

During her confirmation hearings, Elena Kagan was asked if she would be willing to write a letter in support of her friend, Miguel Estrada, who wrote a letter in support of her nomination to the Supreme Court.  She said yes at that time and has written such a letter, addressed to Senator Lindsey Graham, and available from his website, linked here.

Kagan at the Confirmation Hearings (Not Hers)

C-SPAN has a You Tube playlist containing video of Supreme Court justices and others commenting on cameras in the court (as well as a collection of quotes on the topic).  This short video shows Ruth Bader Ginsburg being asked about cameras in the court by Senator Orrin Hatch during her confirmation hearings.  A familiar-looking staffer appears behind Hatch.

Kagan Hearing #3 Afternoon/Evening: Thoughts

Some thoughts on the final questioning of Elena Kagan:

1-Citation of foreign law continued to be an issue, as it had been earlier in the hearings.  In short, opponents see a serious usurpation of authority from American law, while proponents see a red herring, since courts often cite non-binding sources, including law review articles.  Kagan's answers throughout the hearing indicated that she does not view foreign law as binding, but is not categorically opposed to citing it, with one exception.  Near the end of questioning, Kagan indicated to Senator Sessions (R-AL) that she opposes citing foreign law in the Second Amendment context, since the development of that issue is "peculiar" to our country.  See also previous post re: foreign law and the new Bluebook.

2-After riding a strange hobbyhorse the day before (link here, point three), Senator Cornyn (R-TX) made headway on another topic.  Kagan's approach at Harvard Law School, raised numerous times in the hearings, had been to allow military recruiters access to students through the school's veterans association, instead of the career services office used by other employers.  While Kagan was persuasive in defending this approach, Cornyn's characterization of it as "separate but equal" did make one stop and question.

3-Speaking of hobbyhorses, in an attempt to discredit the Roberts Court, Senator Whitehouse (D-RI) pushed a theory that 5-4 decisions are a "telltale" sign that justices are driven by "particular" agendas.  He made the same attempt in earlier questioning.  This Term, the Court decided 18% of its cases by 5-4 margins, compared with 46% unanimous decisions and another 25% with only 1-2 dissents, according to SCOTUSblog's preliminary statistics.  Put another way, the Court was very often in broad agreement, nearly half the time in complete agreement, and hardly characterized by 5-4 decisions.  Kagan also did not lend support.  "I assume," she said, "the good faith of everybody on the Court."

4-As a final note, the hearings ended much as they began, with Kagan's confirmation all but ensured.  The only thing Kagan needed to do was avoid major missteps—and she did.

Kagan Hearings: Election-Year Sound Bites

Five members of the Senate Judiciary Committee are running for re-election this year: Senators Coburn, Feingold, Grassley, Leahy, and Schumer.  (Senator Specter was also running, but was defeated in the primary.)  Below are statements by some of these members, made in the Kagan hearings, that mentioned their constituents, i.e., may make good campaign sound bites.  It should be noted that others, including Senators Hatch and Feinstein, also specifically mentioned their constituents.

Leahy (D-VT): "I'm a gun owner, as are many people in Vermont, and I agreed with the Heller decision."  (6/29/10).

Coburn (R-OK): "[Solicitor General Kagan], you're different than me and you're different than many of the people that I represent."  Also, "you have a very different belief system than most of the people . . . where I come from."  (6/29/10).

Feingold (D-WI): "[A]t a recent town hall meeting I held in Stevens Point, Wisconsin, one of my constituents asked why nominees to the Supreme Court always seem to be from the East Coast, when we have plenty of fine candidates in the Midwest?  How will you strive to understand the effects of the Supreme Court's decisions in the lives of millions of Americans who don't live on the East Coast or in our biggest cities?" 

Incidentally, Kagan responded by asking, "[D]oes it count that I lived in Chicago for some period of my life?"  To which Feingold replied, "Getting closer."  (6/29/10).

Trivia: The Twilight Effect

C-SPAN's video of the Kagan hearings yesterday is divided into four parts.  As of today, the most popular is part one (43,000+ views), with the others trailing far behind: part 2 (6,000+ views), part 4 (3,000+ views), and part 3 (500+ views).  Unless interest has skyrocketed in the right to jury trial, the role of precedent, mandatory arbitration, and other topics in part one, I am going to venture a guess that Senator Amy Klobuchar's reference to the new Twilight movie made the difference.  Perhaps a Justin Bieber reference in part 3 could have helped?

Kagan Hearing #3 Morning: Thoughts

Some observations from this morning's session of the Elena Kagan hearing; in particular, exchanges with Democratic Senator Amy Klobuchar:

1-During Klobuchar's questioning about recent Supreme Court criminal decisions, Kagan noted that Justice Scalia has ruled in favor of criminal defendants in the Confrontation Clause context.  Kagan praised Scalia's "great" example of judging an issue based on law, not on any personal preference for the litigant.  Klobuchar, a former prosecutor, was criticizing the recent Court decisions as complicating prosecutions, certainly not inviting praise about Justice Scalia.  In that sense, Kagan seemed to throw and hit her own softball.

2-Klobuchar did throw a softball Kagan's way as to Chief Justice Roberts.  But, again, the result was curious.  Roberts' now-famous analogy about judges being umpires has been a drumbeat for Democrats during the Kagan hearings and Klobuchar asked Kagan about it.  Kagan began by calling the analogy "correct in several important respects," as well as "apt," and giving examples (e.g., umpires should be unbiased).  She softened her negative comments (e.g., judging is not robotic or simple), by noting that "all metaphors" have limitations.

3-Why was Kagan so quick to praise Scalia and give Roberts an escape hatch?  Practically speaking, Scalia and Roberts are likely to be her colleagues soon (Roberts, possibly for decades, as Kagan and Roberts are both in their fifties).  More generally, perhaps this is the type of approach that has generated respect and support from conservatives like Miguel Estrada, Charles Fried, and Ken Starr?  And strategically, the type of approach that may help her now with Republicans?

4-Klobuchar also worked in a reference to the new Twilight movie, asking Kagan about the Edward v. Jacob question.  Ugh, but at least the hearings got some play on Access Hollywood tonight.

Kagan Hearing #2 Afternoon/Evening: Thoughts

The marathon afternoon/evening session of the Kagan hearing just wrapped up.  Some items of note:

1-Kagan is for cameras at the Supreme Court.  This link contains current justices' views on this issue.

2-Kagan and the senators were more relaxed, or perhaps a bit slap-happy, after hours and hours at it. Kagan had some particularly good jokes, one about cameras in the courtroom and how this will mean she will need to get her hair done. The best one was in response to Senator Graham's question about where she was on Christmas (in his line of questioning about the attempted terrorist act that day in Detroit). She responded that, like most Jews, she was probably at a Chinese restaurant. Senator Schumer chimed in that they are the only places open.

3-Senator Cornyn (with a seeming, but smaller, echo by Senator Coburn) indicated that Brown v. Board of Education was correctly decided because it was a return to original intent and not an example of how constitutional interpretation can evolve.  That's a pretty tough sell.

Kagan Hearing #2 Morning: Thoughts

A few quick thoughts on the morning session of today's hearing on the Kagan nomination:

1-Kagan received questions from senators for and against the Supreme Court's recent Heller and McDonald gun cases.  Interestingly, that diverse questioning came from two Democrats:  Patrick Leahy, who identified himself as a gun owner and noted widespread gun ownership in his state of Vermont, and Dianne Feinstein, who explained the problem of gun violence in her state of California and the related gang epidemic, as well as the fact that she herself had found Harvey Milk (who had been shot).  Feinstein actually used Kagan's answer to a Leahy question (Kagan said that Heller and McDonald are settled law) to challenge Kagan—albeit a challenge-lite, probably not bearing down to the level she would have for a Republican nominee.

2-Senator Kohl, another Democrat, also put Kagan on the spot with questions along the lines of, "Which direction will you move the Court?"  An honest summary of what the senators and the public want to know (particularly those in pain over, e.g., Justice Souter), but Handling 101 would indicate that a nominee is not going to answer that question.  And asking it is going to make them squirm a bit.

3-The morning session covered a great deal of ground: First Amendment, military recruiting, guns, abortion, Commerce Clause, Executive Power, Chevron deference, etc.  For topics covered yesterday, please see this previous post: Kagan bingo.

Kagan Bingo: Hearing Day One

References from the Kagan hearing, day one: Kagan Bingo.

Kagan Hearing #1 Liveblog

Graybeards, Rising Stars, and a Lame Duck

AP introduces members of the Senate Judiciary Committee holding hearings on Elena Kagan today as "[a] cast of graybeards, rising stars[,] and a lame duck."  Link here.  One member is sure to find that Kagan is good enough, smart enough, and doggone it, people like her.

A Circle of Life Kinda Day

In 1787, Benjamin Franklin wondered if the sun painted on the President's chair at the Philadelphia convention was rising or setting.  On Monday, the answer is both.

Beginning at 10:00 am ET, the Supreme Court will issue its last decisions of the Term and Justice Stevens will leave the federal bench after almost forty years, five with the Seventh Circuit and nearly thirty-five with the Supreme Court.  Then, at 12:30 pm, the Senate Judiciary Committee hearings for his replacement, nominee Elena Kagan, will start.