Free Speech For Some, Silence For Others
September 10, 2009
Writing at the blog of the American Constitution Society (though I often wonder which constitution they’re talking about), Bert Brandenburg of Justice at Stake tries to take on the Citizens United free speech case argued in the Supreme Court yesterday. Gavel Grab pointed it today.
With all the nervous speculation on the left that Citizens United will win its case, leading to even more sections of the McCain-Feingold campaign law and other restrictions on free speech being struck down, Brandenburg tries to link Citizens United to the Caperton v. Massey case decided (wrongly decided, I think) earlier this year. Brandenburg argues that there’s too much “special interest” money around elections.
But whatever Brandenburg thinks, there’s no hard evidence linking “corruption” to political contributions to the judiciary - or in the election process, which is the real subject of Citizens United. None. As Ted Olsen argued for Citizens United. “there is simply no evidence that corporate and union independent expenditures have a ‘corrosive and distorting effect’ on the election process.” Olsen is right. And it’s the other side’s - Brandenburg’s side’s - burden to prove that assertion, not Citizens United’s.
Justice at Stake has been widely reported to be extensively funded by George Soros and other liberal donors. If Brandenburg is so concerned about the supposedly corrosive influence of money on politics, then why not support shutting down Soros’ and Justice at Stake’s speech rights before an election? Brandenburg has no problem with a billionaire financing a multi-million campaign to put one-third of our state governments under special interest control. So is the issue money or not?
If his defense is that Justice at Stake is not a corporation and that corporations (and unions) are somehow special, so what? Why does he believe in free speech for some but not for everyone? Why should it matter what form an organization takes as to whether it can have the same free speech rights as everyone else?
Not everyone is as rich as George Soros. (Most corporations aren’t as rich as George Soros.) Not everyone can fund organizations like Justice at Stake to do their bidding. Instead, people join together - including in business corporations and labor unions - to advance their economic interests. Their First Amendment rights shouldn’t stop at election time.
If corporations spend too much on political advocacy, the shareholders can call the board to account - or vote its members off the board. Actually, in the example he cites, I think the shareholders of Massey Coal would like to see the corporation’s money used to advance the interests of the coal mining industry. (And I bet the United Mine Workers union would be right there with them.) And with both today’s extensive contribution disclosure rules and an army of bloggers, corporate and union contributions wouldn’t be secret at all. They’d be exposed for everyone - including the voters - to see.
You’d think something called the American Constitution Society would be for free speech and the entire First Amendment. Apparently, you’d be wrong. Instead, it’s free speech for some, but not for all.
But don’t just take my word for it. Listen to the words of someone who I thought would be a hero to the American Constitution Society and its supporters, Justice Louis Brandeis, in his concurring opinion in Whitney v. California: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”[1]
Brandeis is right and Brandenburg is wrong. More speech, not silencing speech, is the only appropriate policy in a democracy. Corporations and unions deserve free speech rights as much as Justice at Stake does.
[1] Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).
Sotomayor And International Law
July 14, 2009
Today’s Wall Street Journal comments on an aspect of the Sotomayor nomination that has received little attention to date: her disturbing willingness to consider foreign law in interpreting, what is, after all, the U.S. Constitution. In a speech in May, she told an ACLU chapter that “’international and foreign law will be very important in the discussion of how to think about the unsettle issues in our own legal system.” To discourage the use of foreign or international law, she added, would ‘be asking American judges to close their minds to good ideas,’”
No, it wouldn’t be. It would be asking American judges simply to do their jobs – to interpret the law, not make it up. We voted for our state legislatures and for the Congress. We did not vote for the European Parliament or the UN Human Rights Council. If a law is unconstitutional, it should be found to be so based on our Constitution, not the principles of other nations, no matter how lofty they may sound.
That’s what democracy and the rule of law means. And that’s why the stakes are so high in the Sotomayor nomination.
Supreme Court Rebukes Sotomayor
June 29, 2009
A quick break from vacation to weigh in on the Ricci-Sotomaor story. The U.S. Supreme Court handed Judge Sotomayor an embarrassing rebuke on the eve of her confirmation hearings by throwing out her now infamous Ricci ruling. Justice Alito’s concurring opinion (beginning on pg. 42) brutally exposes the raw identity politics at the heart of this legal travesty and skewers the expression of “sympathy” by the Court’s minority:
“ … ‘sympathy’ is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law – of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.”
A Wedge to Abolish Democratic Elections
June 10, 2009
Many of us warned that the Caperton case would be used as a wedge to abolish all democratic judicial elections. Right on cue, the Washington Post today calls for states to “rethink judicial elections altogether” in light the U.S. Supreme Court’s ruling this week to federalize recusal standards for state judges:
“States should consider abandoning elections for a merit selection system that better insulates judges from the corrosive influence of money and politics.”
It’s important to note that the donations to West Virginia Justice Brent Benjamin in question were legal independent expenditures, not campaign contributions. As Chief Justice Roberts wrote in his dissent, “Justice Benjamin and his campaign had no control over how this money was spent.” (his emphasis) Roberts also points out (unlike the Post), that the trial bar spent $2 million in an independent campaign to defeat Benjamin.
The Post offers no evidence (other than this decision) of the “corrosive influence of money” on judicial elections, so let’s turn to Justice at Stake – the campaign bankrolled by billionaire hedge fund kingpin George Soros which lobbies to abolish democratic judicial elections across America. The group told Post reporter Robert Barnes that state Supreme Court candidates “raised almost $168 million from 2000 to 2007, nearly double the amount raised during the 1990s.”
Sure sounds alarming. But wait a minute. Between 2000 and 2008, presidential candidates raised over $3.1 billion (thanks opensecrets.org) – nearly double the $1.6 billion raised in the six elections dating back to 1976! Barack Obama himself raised considerably more than George W. Bush and Al Gore combined in 2000 and about what Bill Clinton, George W. Bush and Bob Dole raised in the 1992 and 1996 races. Where is all the gnashing of teeth from the Post about the “corrosive influence of money” on the presidency? And how exactly will a “merit” system prevent the spending of millions to remove or retain judges in retention elections? You’ll still have the “corrosive influence of money” – but with special interests rather than voters deciding who sits on the bench.
As Chief Justice Roberts argued so eloquently, the Caperton decision is just another example that extreme cases make bad laws. It’s not an argument to abolish the right of citizens to choose who will control one-third of their state government.
“The Supremes Trample On State Courts”
June 9, 2009
The Wall Street Journal editorial page hits it out of the park with a piece on yesterday’s U.S. Supreme Court decision to make federal courts the arbiter of recusal standards and decisions by state judges. Money graph:
“Justice Kennedy tries to limit any judicial chaos by insisting that not every campaign contribution would demand recusal, and that this is an ‘exceptional case.’ But the support for this position by such opponents of judicial elections as the Brennan Center for Justice and the George Soros-funded Justice at Stake gives away the game.
“These groups hope to brand all elections with the taint of inevitable bias, and five Justices have now gone a long way toward validating that claim. One result will be that far more decisions by elected judges will be challenged for bias, further tying up the courts and giving average citizens the impression that all judges can be bought. The ultimate goal of these groups is to have all judges selected by a club of lawyers and insiders that makes judges less accountable to average citizens.”
Chief Justice Predicts U.S. Supreme Court Overreach Will Erode Confidence In Judiciary
June 8, 2009
“Not every campaign contribution by a litigant of attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case.” (Washington Post) So wrote Supreme Court Justice Anthony Kennedy today in the Court’s ruling that a West Virginia Supreme Court justice should have recused himself from a case involving a company whose chairman spent $3 million in an independent campaign to defeat that justice’s opponent.
In a February post, I wrote that since the particular facts of this case were so extreme and unusual, this wasn’t the case to issue a general ruling even in the narrow area of recusals. Federalizing the process of judicial recusals, I warned, would just lead to endless litigation and “judge shopping” – both designed to influence the outcome of a case. Chief Justice Roberts echoed these concerns even more sharply in his dissenting opinion:
“The Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.” (emphasis mine)
The new recusal standard invented by the Kennedy majority “fails to provide clear, workable guidance for future cases,” Roberts writes. He then rattled off a list of 40 questions – “only a few (!) uncertainties that quickly come to mind” – judges will have to consider when wading through the coming flood of bias charges by trial lawyers who find themselves on the “wrong” end of a decision. In the final analysis, says Roberts:
“Today’s opinion requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratituted?).
Perhaps recognizing the Pandora’s Box opened by his decision Justice Kennedy tries to pull back, arguing that “most disputes over disqualification will be resolved without resort to the Constitution.” Roberts is having none of it, calling Kennedy’s qualifier “just so much whistling past the graveyard.”
“ … I believe that opening the door to recusal claims under the Due Process Clause, for an amorphous ‘probability of bias,” will itself bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts.”
Roundup On The Sotomayor Nomination
May 29, 2009
Ed Whelan at NRO has the facts on Judge Sotomayor’s controversial decision in Ricci and the extraordinary dissent by Judge Jose Cabranes that helped propel this case to the U.S. Supreme Court. Whelan speculates that Judge Sotomayor’s unsigned, unpublished opinion, which Judge Cabranes dismissed as “containing a single substantive paragraph,” was designed to fly under the radar and escape further judicial review. Over at Slate, Emily Bazelon also asks why Judge Sotomayor “didn’t explain herself”:
“If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect. It drew Cabranes’ ire, and he hung a big red flag on the case, which the Supreme Court grabbed.”
“The problem for Sotomayor … is why she didn’t grapple with the difficult constitutional issues, the ones Cabranes pointed to. Did she really have nothing to add to the district court’s opinion? In a case of this magnitude and intricacy, why would that be?”
The Ricci case stems from a decision by the City of New Haven to disregard the results of a promotion exam for firefighters – a exam “carefully constructed to ensure race-neutrality” according to Judge Cabranes – because not enough minority candidates qualified for promotion. Several white firefighters and two Hispanic firefighters were denied promotion, even though they qualified based on their test performance, and they later sued the city.
Judge Cabranes wrote that the appeal “raises important questions of first impression in our Circuit – and indeed, in the nation” … that the Constitutional questions “are indisputably complex and far from well-settled” … that Judge Sotomayor and her two colleagues “failed to grapple with the questions of exceptional importance raised in this appeal” with an opinion that “contains no reference whatsoever to the constitutional claims at the core of this case” and that he hoped “the Supreme Court will resolve the issues of great significance raised by this case.”
Much has been made of Judge Sotomayor’s history-making nomination as the first Hispanic chosen for the Supreme Court. Perhaps that honor should have been reserved for her Second Circuit Court of Appeals colleague Judge Jose Cabranes.