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But when will the October 2009 term conclude? It’s going to be a busy, busy summer.

On last week’s episode (around the 16:40 mark) of The Simpsons, Sideshow Bob intends to kill Bart at 5 Corners, a play on 4 Corners (where the borders of Arizona, Utah, Colorado, and New Mexico meet). Bob explains that if he stands in State one, fires a  bullet in State two, and the bullet travels in State three, and the bullet hits Bart in State 4, and Bart falls into State 5, there is no single jurisdiction that can prosecute him. It is the perfect crime he claims.

Not so much. Though, this may be the only example I can think of that properly invokes the federal murder statute.

Available here. It’s over 200 pages long. And yes, I will read through it. I’ll post any observations I have.

Question about Determining Recusals

Question- Explain the procedure you will follow in determining recusals.

Answer- If confirmed, I would recuse in all matters for which I was counsel of record. Iwould also look to the letter and spirit of the Code of Conduct for United StatesJudges (although it is not formally binding on members of the Supreme Court ofthe United States), the Ethics Reform Act of 1989, 28 U.S.C. 455, and any other relevant prescriptions. I would also consult with my colleagues in any case whererecusal might be advisable.

All cases Kagan has tried to verdict (none)

Question- List, by case name, all cases in courts of record, including cases beforeadministrative law judges, you tried to verdict, judgment, or final decision

Answer- I have never tried a case to verdict or judgment.

Discussion of Amicus Brief in Rumsfield v. FAIR

Question- Supply four (4) copies of any briefs submitted to the Supreme Court of theUnited States on your behalf as a party or amicus. Summarize your reason forinterest or involvement in each brief.

Answer-While dean of Harvard Law School, I joined an amicus brief in the SupremeCourt (as well as in the Third Circuit) with many of my faculty colleagues insupport of respondent Forum for Academic and Institutional Rights, Inc. (FAIR) in an action against Secretary Rumsfeld challenging the Solomon Amendment,which governs universities’ treatment of military recruiters. I did not participatein the drafting of this brief. Whereas the main brief in the case presented aconstitutional argument, the amicus brief presented a statutory argument – that theAmendment did not require universities to exempt the military from generallyapplicable anti-discrimination rules governing employers. The Supreme Courtunanimously rejected all claims, constitutional and statutory alike in Rumsfeld v.FAIR, 547 U.S. 47 (2006).

Legal Activities in Private Practice, in Academia, and as Dean

Question- Describe the most significant legal activities you have pursued

Answer-

I currently serve as Solicitor General of the United States. In that capacity, I am theprincipal advocate for the United States in the Supreme Court, and make a wide varietyof decisions concerning the appellate litigation of the United States.For almost six years, I served as the dean of Harvard Law School. That job had a verysignificant academic component: as dean, I led efforts to expand and enhance the facultyand to reform and modernize the curriculum. The job also had a very significantmanagerial component: Harvard Law School has a $180 million operating budget, over500 employees, and almost 1 million square feet of physical space. Finally, the jobincluded significant outreach to and interaction with key parts of the profession,including judges, government officials, private attorneys, and public interest lawyers.Significant parts of my career have been devoted to scholarship and teaching. Between1999 and 2003, I principally focused on administrative and associated constitutional lawquestions. My major work during this period concerned the relationship between thePresident and the administrative agencies. Between 1991 and 1995, I wrote primarilyabout issues of free expression. My major work at this time proposed a theory of theFirst Amendment focused on the nature of governmental motives underlying speechrestrictions.My work in the White House, both in the Counsel’s Office and the Domestic PolicyCouncil, centered on the development and implementation of law and policy in areasranging from education to crime to welfare to public health. Among other matters, I ledthe Clinton Administration’s inter-agency effort to analyze all legal and regulatoryaspects of the Attorney Generals’ tobacco settlement and then participated actively in thedevelopment and congressional consideration of tobacco legislation. I also worked onlegislative or executive action involving constitutional issues, including the separation ofpowers, governmental privileges, freedom of expression, and church-state relations.I have never performed lobbying activities for any client or organization

Courses Kagan Taught

Question- What courses have you taught?

Answer-

Constitutional Law – numerous times at Harvard and University of Chicago; most recentsyllabus attachedCivil Procedure – numerous times at Harvard and University of Chicago; most recentsyllabus attachedLabor Law – three times at University of Chicago; most recent syllabus attachedPresidential Lawmaking (seminar) – once at Harvard; syllabus attachedThe President and the Law (seminar) – once at Harvard; syllabus attachedLaw of Political Process (seminar) – once at University of Chicago; no syllabus found;dealt with issues of election law such as districting and campaign finance.

Possible Conflicts of Interest

Question- Conflict of Interests

Answer-

Article I, Section 2 of the Constitution provides:

No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.

Article I, Section 3 of the Constitution provides:

No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.

The First Congress met from March 4, 1789 to March 3, 1791. Who among the representatives and senators in the First Congress were citizens of the United States for Seven Years or Nine Years? If none of them had obtained these minimum qualifications, was the First Congress unconstitutional?

In other words, what is the starting point to count to 7 or 9 years? The Constitution? The Articles of Confederation? The Declaration of Independence?

Article VII provides that 9 states need to ratify the Constitution before it becomes effective.  New Hampshire, the 9th state to ratify, did so on June 21, 1788. If that is the starting point, no one would have been a citizen for much more than a year. Even so the Constitution, prior to the 14th Amendment, provides no positive grant of citizenship, either through birthright or through some grandfather clause. Who was a citizen at all if you resided in the United States prior to the ratification of the Constitution?

The Naturalization Act of 1790 provided that an alien could petition for citizenship after residing for 2 years in the United States, and one year in the state of residence. But that comes after the Constitution. What about people who already resided in the United States?

What about the Articles of Confederation? The Constitutional Convention, after all, was called with the intent of amending the Articles. Perhaps that is the relevant starting point. The Articles of Confederation were ratified on March 1, 1781. So a representative could have been a citizen for seven years in 1789, but it would have been impossible for a senator to have been a citizen for 9 years in 1789.  And like the original Constitution, the Articles of Confederation, as far as I can tell, did not include a positive grant of citizenship. Perhaps the Congress under the Articles passed some statute granting citizenship. I am not sure.

Perhaps the relevant starting point is July 4, 1776, when Independence was declared from Great Britain? The Declaration is not really a charter of Government, and the Supreme Court has repeatedly said that the Declaration has no impact on our present system of government. But at least the numbers work out, as it would cover senators and congressmen.

But would that cover the Presidential qualifications? Article II provides:

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

First note that Article II requires that the President merely be a resident within the United States, while Article I requires citizenship for representatives and senators. There must be a distinction between the two terms.

Assuming the United States was created on July 4, 1776, as prior to that date the United States could not exist as it was a British colony, George Washington would only have been a resident within the United States for 14 years on July 4, 1790.  But George Washington was inaugurated on April 30, 1789. Was George Washington ineligible to be President? Where is Orly Taitz when you need her?

I realize the absurdity of these arguments, but I query whether anyone at the time considered these questions. The Framers added the residency/citizenship requirements for a reason. Perhaps they thought that by virtue of being an American at the time of the Founding, however broadly defined, citizenship was implied. Or perhaps, they thought it just wouldn’t matter for the first few Congresses, and eventually everything would work out. I don’t know. But this is something that could have some effects on notions of citizenship.

Update: A related thought. Assuming citizenship goes back to the Declaration, that would mean the Declaration conferred rights of citizenship. If the Declaration conferred a right of citizenship, what other legally cognizable rights did it confer? And if the Constitution recognizes the Declaration’s right of citizenship, should it recognize other rights? Cf Scalia’s dissent in Troxel v. Granville.

The Harlan Institute is about to send off our Form 1023 in order to obtain 501(c)(3) status, which will allow all donations to be tax deductible. However, the filing fee in order to obtain 501(c)(3) status is a whopping $850!

How does the IRS expect fledgling nonprofits, who are seeking 501(c)(3) status in order to receive donations, to pay $850 before receiving any donations? This seems to be a Catch 22 of sorts.

In order to receive donations, a non-profit has to obtain 501(c)(3) status. But in order to obtain 501(c)(3) status, and pay the $850, the nonprofit first needs to receive donations!

Lousy barriers to entry.