Archive for the 'Supreme Court' Category

In sweeping 5-4 decision, Supreme Court strikes down restricitons on corporate spending

Published
by
Taniel
on January 21, 2010
in Supreme Court and financing
. 19 Comments

If Massachusetts’s special election and health-care reform’s woes had already made this week a nightmare for liberals, the Supreme Court just ensured it became pure hell. In a momentous 5-4 decision, the Court ruled that attempts to regulate corporations’ electoral spending were inconsistent with the First Amendment, striking down decades of legislation and judicial precedents and likely unleashing a torrent of corporate expenditures in the 2010 elections and beyond that could make recent elections cycles look like cheap children’s pay.

In one fell swoop, the Supreme Court overruled two recent rulings: 1990’s Austin v. Michigan Chamber of Commerce, which found that the government has an interest in leveling the playing field when it comes to corporate spending unlike when it comes to non-profits or individuals, and 2003’s 5-4 decision in which the Court upheld McCain-Feingold’s prohibition on “corporate electioneering communications.” Today’s decision allows corporations to directly advocate or oppose a candidate, spending however much they want sending out mailers or airing TV ads.

The ruling also applies to unions, but there is no question that corporations are far better equipped to take advantage of their new right to limitless spending. (Furthermore, ScotusBlog points out that the way in which the decision is written never makes it quite explicit that labor groups are also concerned by this decision, so this is an issue that might still need clarification in the future.) As such, today’s decision should be a boost to the GOP, which has always been closer to business groups. It provides an obvious path for Republicans to close the fundraising gap it’s been suffering from this cycle - and even more so in the 2012 presidential election.

Needless to say, Democrats have enough to worry about heading into November that they can’t be looking forward to the added prospect of powerful corporations opposed to health-care reform or EFCA (not that either of these pieces of legislation look anywhere close to passing) helping Republican candidates pull off a red wave.

But the ramifications of today’s decisions go beyond partisan considerations. Democrats have plenty of corporate backers themselves; this development puts them at a clear disadvantage, but they won’t be left out to try. Rather, it is the entire political system that risks finding itself even more corrupted than it is today.

Struck down down today were decades of reforms aimed at curbing coprorations’ massive influence on policy-makers and politicians, at establishing a cleaner system and at implementing some semblance of a level playing-field. Fundraising disparities already play too great a role in determining the outcome of elections, which leaves most politicians too dependent on wealthy donors and on the support of powerful industries to assert much independence. So what is to be expected now that incumbents will know that the corporations that are lobbying them could at a moment’s notice spend millions of dollars helping or attacking them - and do so with little to no hassle, with no need to channel the money through groups like the Chamber of Commerce? Politicians will grow even more dependent on corporate support.

Given how much money even medium-sized corporations drop on a single (non-political) advertising campaign, think just how much a single one could do if it were to promise a candidate to aid his election. In a few years, recent spending gaps could come to look tiny, as the full scale of economic inequalities can now “translate into vast political inequality,” in Rick Hasen’s words. This should be of particular help to incumbents, as corporations obviously have more incentives to help politicians who already hold power. This could make the prospect of mounting a successful primary even more daunting than it already is.

The main type of campaign finance legislation the Supreme Court left standing were disclosure and disclaimer requirements, but color me skeptical that the ability to trace just where the money is coming from can do much to balance huge unbalances. This is especially the case in low-profile local and state elections, which do not even get the level of coverage received by presidential or Senate elections. (Citizens United only applies to federal law, but it is likely to quickly permeate to state legislation.)

Those are quite dramatic changes for one Supreme Court decision to usher in, especially when the ruling overrules two recent precedents. As such, Citizens United marks a clear decision by the Roberts majority to leave behind the path it had chosen in other areas of the law, most notably in June’s unexpectedly minimalist ruling upholding the Voting Rights Act. But if Justices were only chipping away at existing law in such recent cases (to Thomas’s dismay), today’s ruling marks a dramatic change of strategy that signals the 5 conservative judges are increasingly willing to assert their judicial visions.

There is no question that the Court knows exactly how momentous a ruling it has issued: It had many options at its disposal to decide this case in a narrower way. (This is what the same majority had done in 2007’s FEC vs. Wisconsin Right to Life, when it had dealt a major blow to the McCain-Feingold Act but stopped short of overturning Austin or McConnell.) Yet in June the Court ordered Citizens United to be reargued in a way that specifically addresses the questions of whether these precedents should be overturned; at that moment, it became clear that the 5 conservative Justices were looking to take drastic action (”Supreme Court prepares to strike down campaign spending restrictions,” I wrote on June 30th) and were setting up an opportunity to do so.

Roberts, Alito and Kennedy’s willingness to say the exact contrary that the Court had said in 2003, the only difference being O’Connor’s absence, signals that Scalia and Thomas’s have finally convinced them that they should be willing to be more aggressive. That could signal bleak years ahead for the four liberal Justices. One thing the left can take out of today’s decision: This was the first major decision Justice Sotomayor participated in, and I believe the first 5-4 ruling she was part of. The fact that her vote is not the lead story today should at least reassure Democrats that she is not going to pull a Souter-in-reverse.

Update: This memo written by election lawyers is well worth-reading, as it makes Citizens United look far more consequential than I even suggested in this post.

Supreme Court prepares to strike down campaign spending restrictions

Published
by
Taniel
on June 30, 2009
in Supreme Court and fundraising
. 1 Comment

Forget congressional retirements and congressional recruitment. The prospect that campaign finance rules will be dramatically weakened this fall should be just as important in determining the shape of cycles to come.

Yesterday, on the last day of its term, the Supreme Court took the rare move of announcing it would not resolve one of its cases, Citizens United v. FEC, instead ordering to be reargued on September 9th to address whether “the Court [should] overrule either or both Austin v. Michigan Chamber of Commerce, and a part of McConnell v. FEC, which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002.”

It looked likely that conservatives would prevail in this case, but the Court’s order is more chilling to advocates of campaign finance reform than most rulings that could have come out yesterday: It signals that a majority of Justices are preparing to strike down long-established precedents that authorize the regulation of electoral spending by corporations.

A move that has been a long time coming

Back during the 2008 Democratic primaries, a conservative for-profit group called Citizens United attempted to broadcast a documentary attacking Hillary Clinton paying a cable TV consortium $1.2 million to set the movie as a free “video on demand,” allowing any interested households to view it at no cost. The FEC intervened, based on the McCain-Feingold law’s prohibition on corporate-funded “electioneering communications” in a period of 30 to 60 days before the general election. Citizens United sued, seeking remedies ranging from a ruling that on-demand TV is exempt from McCain-Feingold to a decision that would strike down restrictions on corporate spending.

In the past, the Supreme Court has repeatedly upheld such restrictions. In 1990, Austin v. Michigan Chamber of Commerce found that, unlike when it comes to non-profits or individuals, the government has an interest in leveling the playing field when it comes to corporate spending. “The corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas,” the Court wrote. In 2003, in a 5-4 majority made up with Justice O’Connor, the Court upheld McCain-Feingold’s prohibition on “corporate electioneering communications.”

But in more recent years, the Court has taken a different direction. Last June, a 5-4 majority overturned the “millionaire’s amendment” which increased contribution limits for candidates facing an opponent who is spending huge amounts of his own money. More relevant is Federal Election Commission v. Wisconsin Right to Life, a 2007 case that addressed the same question as Citizens United: Are the limits on corporate spending in a short window of time before the election constitutional? A 5-4 ruling dealt a major blow to the McCain-Feingold Act but stopped short of overturning Austin or McConnell: The majority instructed that the limits could only apply to ads that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

But the 5-vote majority in FEC v. Right to Life was divided: While the controlling opinion of Roberts and Alito used some strong language against campaign finance, Kennedy, Scalia and Thomas wrote a concurring opinion urging the court to go further and strike down McConnell altogether.

Well, it looks like they are about to get what they wanted. The Court’s order for the case to be reargued in the context is a crystal-clear clear sign that they are preparing to overrule not one by two Supreme Court precedents in one fell swoop.

As I wrote above, Kennedy, who typically controls the center of the Court, has been one of the most vocal Justices against the constitutionality of campaign finance. He dissented in Austin, he dissented in McConnell, he was part of the majority in Davis and he urged his conservative colleagues to go further in Wisconsin Right to Life. There is no doubt how he will answer the question the Court just posed, nor is there any doubt about Scalia and Thomas’s opinion.

As for Roberts and Alito, they could easily have found a way to rule in favor of Citizens United without threatening the principle of restrictions on corporate spending, but they have already declined to do so. (As to why the Court would not have overruled Austin at once, the consensus seems to be that the conservative majority was unwilling to take such a significant step without the constitutional issue being addressed more explicitly; an additional hearing should make their decision more legitimate.)

As such, it would be a huge surprise if the Court decides not to overturn Austin come the fall and if 2009 ends with restrictions on corporate spending still in place.

What does any of this mean for upcoming elections?

Starting in 2010, corporations will probably be allowed to spend unlimited funds to support or attack candidates - and without any timing restriction. That will dramatically change fundraising benchmarks, campaign finance rules and the shape of elections big and small. Here’s the opening paragraph of Rick Hasen’s take on the Supreme Court’s move:

If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama’s $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama.

Indeed, this development should favor Republicans. They typically get more business support and as such will be better equipped to take advantage of the prospect of unlimited corporate spending. But let’s not overstate the partisan significance of what the Supreme Court is months away from doing. Democrats will be at a disadvantage, but they won’t be left out to dry either.

For one, restrictions on labor spending should also fall; but the maximum amounts union can spend is probably inferior to that corporations are prepared to invest. More significantly, the ability for corporations to spend unlimited amounts should solidify incumbents regardless of party, as they tend to receive the most institutional money. And it’s not like Democrats - especially when they control Washington - don’t also enjoy high levels of corporate support.

In the system as is currently designed, corporations play a major role in the life of both parties (just look at where members of any congressional committees get their money from). Overturning Austin will grant corporations even greater influence on elections - and thus on politicians’ actions. Increasingly dependent on corporate support, our representatives will be in the pockets of special interests to a greater extent than they are now.

Combined with last year’s ruling striking down the millionaire’s amendment, this is all part of a trend to toss out any governmental attempt to level the playing field when one side is grossly outspending the other - and god knows that we are talking about minimal steps here anyway. It seems difficult to argue that wealthy politicians or candidates benefiting from heavy institutional support are that restricted in making use of their financial dominance - just look at New York City’s mayoral race.

Further reading

Election Law Blog is the place to start for more analysis on all of this. For those of you interested in the Supreme Court, I highly recommend this analysis by Tom Goldstein, who describes John Roberts method of issuing minimalist rulings so that he can later use them to overturn long-standing precedents: “It is reinforcing its own legitimacy with opinions that later can be cited to demonstrate that it is not rapidly or radically changing the law... Absent an unfortunate turn of health, between now and the summer of 2017 there is no realistic prospect that the Court will turn back to the left. Over the course of that eight years, it is possible to take enough measured steps to the right to walk a marathon.  Again, no need to rush.”

In unexpectedly minimalist ruling, Supreme Court lets Section 5 stand

Published
by
Taniel
on June 22, 2009
in Supreme Court and redistricting
. 3 Comments

Civil-rights advocates drew a collective sigh of relief this morning.

In one of the year’s most anticipated decisions - Justice Ginsburg recently referred to it as “perhaps the most important case of the term” - the Supreme Court was set to decide the constitutionality of the Voting Right Act’s Section 5, which requires that jurisdictions with a discriminatory past get federal preclearance on new voting procedures or on redistricting plans.

The case was brought about by the Northwest Austin Municipal Utility District, which challenged the Section 5’s 2006 renewal and argued it should not have to submit its plan for preclearance. The district demanded either that it be allowed to ‘bail out’ or that entire Section 5 be declared unconstitutional altogether. The former route did not seem like a credible option to most observers, since the VRA seems to clearly state that only states or jurisdictions that register people to vote can apply for a bail out.

Based on the court’s recent track record, on the conservative Justices’ behavior during the oral arguments and on John Roberts’s known hostility towards Section 5, most observers expected the Court to take the latter route and thus deal a fatal blow to the VRA, one of the crowning achievements of the civil-rights era. (For one thing, that would have been sure to cause big changes in many states’ electoral maps during the next round of redistricting - making this story very relevant to this blog’s beat.)

Instead, the Court sidestepped the constitutionality question in a surprisingly broad 8-1 ruling that has something for everyone. The decision grants the district what it wanted (a bail out), which allows the Court not to take care of the case without having to address the question of whether Section 5 should be allowed to stand - “a difficult constitutional question we do not answer today.”

This is a somewhat surprising step for the Court to take: We haven’t come to expect this sort of consensual, sidestepping and minimalist decision from the Roberts Court. The conservative Justices have a solid majority, and they have not been shy about using it to issue controversial jurisprudence-changing decisions. Why didn’t they go all the way and follow Clarence Thomas, the lone dissenter, who insisted that the VRA should be struck down because the discriminatory conditions that made it acceptable in the 1960 no longer exist. ”The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains,” he wrote.

That said, the ruling should not be mislabeled as anything but a victory for the conservatives’ position: The lower court, which had ruled against the utility district, saw its decision reversed and the district was allowed not to seek federal preclearance. Roberts got what he wanted, and he managed to convince all the liberal Justices to come along with him - presumably as a price to pay to avoid a more brutal decision.

In fact, the liberal Justices had to agree to sign on to a Roberts-authored opinion that holds that Section 5 poses “serious constitutional concerns” and that the “preclearance requirement represents an intrusion into areas of state and local responsibility that is otherwise unfamiliar to our federal system.” Those might not have been easy concessions for some of them to make.

Absent context, then, it’s hard to see what civil rights advocates should be cheerful about. Yet, when you consider the alternative that had come to be expected (the Court striking down Section 5 everywhere rather than just in this Austin district), this is obviously a major relief for VRA defenders.

So what happened? Did some of the right-leaning judges decide that gutting the VRA would be too significant a ruling to take on a 5-4 vote? If so, who balked - the Chief Justice, who might want to be seen as a consensus-builder, or Kennedy? How hard did Souter push, and how much did this coming retirement influence the other Justices? All questions we won’t have the answer to for years.

Section 5 is obviously not suddenly protected. By acknowledging “serious constitutional concerns,” the Court, a majority of which is clearly hostile to Section 5, are inviting another challenge to the law - one that will be so clear as to not give liberal justices any escape route. When the time comes for that case, the VRA will still be in trouble.

So all liberal Justice did was gain time, but that is still significant. For one, who knows how long it will take for another Section 5-challenging lawsuit to work its way to the Supreme Court; maybe one of the conservative judges will have retired by then, shifting the balance of power and saving the VRA. Furthermore, this makes it relatively probable that the Court will not strike down Section 5 in time for the next round of redistricting, which is set to occur in 2011.

This means that Southern states will have to submit their electoral maps to the federal government to get preclearance, which will mean that VRA-districts will continue to exist throughout the region and that should maintain the number of African-American representatives to its current level. (Had Section 5 been struck down today, the CBC’s membership would most likely have dropped.)

Here is why this is important: It will be Obama’s Justice Department that will be charged with reviewing the proposed maps, making this the first time EVER that a Democratic administration will be in charge of issuing permissions! (The White House has been controlled by a Republican at the start of every decade since the VRA passed: Nixon, Reagan, Bush 41 and Bush 43.) While we shouldn’t expect that major a change, the Obama administration is still expected to be more aggressive in defending civil and voting rights, so we shall see how Southern legislatures deal with the threat of Democratic federal intervention when they have to redraw maps.

Georgia and Louisiana will be particularly interesting to follow - the latter because it will have to deal with post-Katrina movements, which means the map will probably have lots of changes, the former because its new ID law was just censored by the Justice Department.

More at ScotusBlog and Election Law.

Update: I also recommend Tom Goldstein’s enlightening analysis of this decision as the Court essentially asking Congress to reform the statute and sending a clear warning that it will overturn Section 5 if legislators do not intervene; Goldstein outlines a few reforms that the Court could find acceptable. Over on Balkanization, Bruce Ackerman argues the contrary, holding that the conservatives blinked and that makes it unlikely they’ll dare strike down Section 5 in the future.

The politics of the Sotomayor pick

Published
by
Taniel
on May 27, 2009
in Sotomayor and Supreme Court
. 3 Comments

My first post on Sotomayor concentrated on her profile and her pick’s consequences on the composition of the Supreme Court. But a Supreme Court nomination is obviously also about politics as it has to go through a confirmation battle and can come to define a president’s legacy.

In Sotomayor, Obama chose a nominee who is unlikely to face a difficult confirmation battle. He combined the formula used by Bill Clinton (pick a moderate judge to ensure the opposition is afraid a second choice could be more radical) with that used by George W. Bush (a judge who has such a stellar resume that derailing him becomes virtually impossible). And he added a third element by choosing someone whose ethnic and class background makes it all the more tricky to oppose her.

Sotomayor is heading towards an easy confirmation hearing

As the Roberts nomination demonstrated, it is tough for a party to muster opposition to a federal judge who has impeccable qualifications - and Sotomayor undeniably does: Undergraduate studies at Princeton, Yale Law School, appointment to a district court by a Republican president, appointment to the appeals court by a Democratic president… This is a resume tailor-made for an easy confirmation hearing! Jeffrey Rosen’s much-quoted TNR article suggested that her opponents will question her intellectual credentials, but that is quite obviously not a viable argument given the trajectory of Sotomayor’s career.

Add to that the fact that Sotomayor has a centrist reputation and no track record on abortion (the issue that the GOP typically seizes on to rally its base, as it did with Sebelius) and it becomes difficult to envision conservatives convincing the Republican center - let alone public opinion - to oppose her nomination.

In fact, conservatives should ask themselves whether they even want to derail her nomination. As I discussed earlier, Sotomayor was on the moderate side of Obama’s list: If Sotomayor is somehow derailed, not only would Republicans not suddenly get a chance to choose Souter’s replacement but Obama’s second pick could very well be further to the left than his initial one. Should the GOP push hard to defeat Sotomayor?

Finally, many in the GOP will be sensible enough to the danger of antagonizing the Hispanic community that they will be weary of mounting a full-on attack on Sotomayor - especially given how clear it is that she will be confirmed.

Republicans do not have the votes to block her

Despite all of these factors, let’s say that the Republican establishment decided that it was worth going all-out against Sotomayor. It will become quickly obvious to them that they do not have the votes to get anywhere. In fact, the Senate GOP is so weak that any nominee would have been heavily favored to be confirmed - let alone one that is likely to attract bipartisan support.

Democrats currently have 59 Senators; they are one short of the needed 60 votes, and it is possible that Minnesota’s Al Franken will be seated by the time Sotomayor’s nomination comes up for a vote. If he does - and if Ted Kennedy shows up for the vote, which is more unlikely than Franken’s presence - all Democrats need is a unified caucus. And this is a high-profile enough vote that such unity is likely - especially on cloture, which is obviously not the same as the confirmation vote.

Even if Franken is not seated and Kennedy does not show up, there are enough GOP Senators who tend to be deferential to presidential appointments that united Republican opposition is unfathomable. Already Senator Olympia Snowe, who voted in favor of Sotomayor’s appointment to the appeals court in 1998, released a statement suggesting she could support her SCOTUS nomination. Other Republicans who supported her in 98 are: Robert Bennett, Thad Cochran, Susan Collins, Orin Hatch, Judd Gregg and Richard Lugar. Among this list, I find it particularly unlikely that Hatch and Lugar would join a filibuster. Also watch out for Lisa Murkowski.

Heated opposition is still likely

The fact that Republicans are unlikely to derail Sotomayor and that they know it does not mean that Sotomayor should expect a quiet summer. Even if there is little suspense surrounding her confirmation, intense opposition is likely to arise in some conservative quarters.

The reason for this is simple: Few issues can arouse the passion of right-wing activists as much as a Supreme Court nominee. Thus, Republican Senators cannot afford being too conciliatory because they would risk angering their base; also, it provides an ideal way for conservative groups still stunned by the magnitude of their 2008 defeat to remobilize their activists, raise millions of dollars promising to battle Obama’s judicial agenda and thus get back in Washington’s political games.

And here is where the coming months could get tricky for Republicans: Images of conservatives agitating against the first Hispanic nominee to the Supreme Court could make their way in Hispanic media and further alienate the Latino community.

Remember that George Bush performed relatively well among this group in 2004, so it’s not like Hispanics have always voted Democratic. The GOP’s far-right rhetoric on immigration in recent years has provoked a significant rift between Hispanics and Republican. Obama has been looking to capitalize on Latino’s rising suspicion that they are not welcome in the GOP, and the Sotomayor pick could help Democrats solidify the Hispanic vote’s leftward trend. That could have dramatic consequences in Florida and in Southwestern states in 2010, 2012 and beyond.

Sonia Sotomayor

Published
by
Taniel
on May 26, 2009
in Sotomayor and Supreme Court
. 4 Comments

From the moment Justice Souter announced his retirement, Sonia Sotomayor led the list of potential replacements. For a while, Diane Wood looked like the new favorite, but that was due as much to shady hit pieces against Sotomayor than to anything actually changing inside the White House. And at the end of the day, early conventional wisdom proved right: Barack Obama appointed Sotomayor to the Supreme Court.

The first Hispanic to be nominated to the Supreme Court, Sotomayor’s appointment could have important political consequences in solidifying the Democrats’ advantage among the Latino constituency - especially if conservatives go all-out in opposing her. But it is of course on the Supreme Court that this pick will matter most: Now only 54, Sotomayor will spend a long time on the bench - though a lot is already being written about her Type I diabetes.

Sotomayor will probably prove a reliable member of the court’s liberal bloc and she should prove at least as liberal as Souter. But many on the left were hoping for a bit more and they could be disappointed that Obama did not use the opportunity to appoint someone who could have proven to be an ideological counterweight to Antonin Scalia -  a judge who pushes for broad changes to jurisprudence or who has a large enough vision to deploy an aggressive argumentative arsenal against Scalia and Thomas.

Such an arsenal might have lacked the votes to win decisions now, but it could have been used by liberal judges on lower courts and laid the groundwork for the left’s judiciary renaissance in the decades ahead. (This is what occurred with Justice Rehnquist, for instance.)

Instead, Sotomayor has a centrist profile, a minimalist vision of the judiciary and a clear preference for narrow and incremental rulings. She looks far closer ideologically to the man she will replace than to Justices like Marshall and Brennan. She is unlikely to alter the current situation by which the four liberal Justices are closer to the center than the four conservative Justices, an unbalance that skews the court to the right before we even add in Anthony Kennedy.

She is also more of a moderate than most of the other potential picks. Wood, the rumored runner-up, is also centrist but looks to be further to the left on issues like business law and the scope of executive power - not to say anything of people like Pam Karlan and Kathleen Sullivan.

“Known as a moderate on the court, Sotomayor often forges consensus and agreeing with her more conservative nominees far more frequently than she disagrees with them,” say the White House’s talking points, leaked to the press earlier today. And while many Republicans like Mitt Romney and Mike Huckabee are clamoring their opposition, a founder of the conservative group Judicial Watch is enthused enough to release a statement praising Obama’s choice.

Sure, Obama could get another pick. But who knows whether circumstances will ever be as favorable for him to get whomever he wants confirmed? More importantly, the president does not seem interested in appointing a clearly left-leaning judge and his centrist politics align him with someone like Sotomayor. This is not to say that Obama is not sensible to the argument that a counterweight to Scalia is needed to balance the Court but what Obama understands by “counterweight” has probably less to do with ideology than intellectual ferocity and argumentative brilliance.

And Sotomayor is undeniably very well equipped to become a legal superstar. Despite the month-long smear campaign that sought to portray her as somewhat of a dummy, someone who was born in a working-class family in the Bronx and worked her way through Yale Law School clearly has the intellectual gravitas needed to shape jurisprudence in lasting and meaningful ways.

All in all, Sotomayor has enough of a track-record that she seems unlikely to be the Democrats’ version of Souter and O’Connor. Some liberals are expressing concern that Sotomayor was first appointed to the federal bench by George H. W. Bush - but articles written back in 1992 made it clear that she was nominated as part of the compromise Republicans struck with Democrat Daniel Moynihan that allowed the New York Senator to recommend people to fill two of the nine district court vacancies.

Another point of discussion concerns Sotomayor’s years as a prosecutor and how that might impact her work on the court. An article published in The New York Times in 1983 makes for a fascinating read:

Sonia Sotomayor, now in her fifth year as an A.D.A., tried to examine her own motives in making the decision to join the office of the prosecutor… “There was a tremendous amount of pressure from my community, from the third-world community, at Yale,” she recalls. “They could not understand why I was taking this job. I’m not sure I’ve ever resolved that problem.

Some of Miss Sotomayor’s initial misgivings about working as a prosecutor were resolved when she moved from misdemeanors to more serious crimes. “I had more problems during my first year in the office with the low-grade crimes — the shoplifting, the prostitution, the minor assault cases,” she says. “In large measure, in those cases you were dealing with socioeconomic crimes, crimes that could be the product of the environment and of poverty.

“Once I started doing felonies, it became less hard. No matter how liberal I am, I’m still outraged by crimes of violence. Regardless of whether I can sympathize with the causes that lead these individuals to do these crimes, the effects are outrageous.”

“What I am finding, both statistically and emotionally,” she continues, “is that the worst victims of crimes are not general society — i.e., white folks —- but minorities themselves. The violence, the sorrow are perpetrated by minorities on minorities.”

Miss Sotomayor, an imposing woman of 29 who smokes cigarettes incessantly, speaks deliberately of how she has coped with the job. “The one thing I have found,” she says, “is that if you come into the criminal-justice system on a prosecutorial or defense level thinking that you can change the ills of society, you’re going to be sorely disappointed. This is not where those kinds of changes have to be made.”

With the caveat that Sotomayor has probably changed a lot over the course of 26 years, this article confirmed that Sotomayor is liberal (someone whose instincts are not at the left would not feel the need to justify being a prosecutor), that she believes in a minimalist vision of judicial restraint and that the left should not expect more (or less) from her than it got from Souter.

A look at some of her important appeals court decisions gets me to similar conclusions.

One case in particular seems symptomatic of Sotomayor’s reluctance to issue broad decisions and of the limits of scrutinizing her record. In January, she joined a ruling which upheld a New York law prohibiting chukka sticks on the basis that the Second Amendment does not apply to the states. The majority opined that this was a matter of settled Supreme Court precedent but recognized that last year’s Heller vs. DC decision might suggest otherwise; but, the court wrote, “the Supreme Court [should be left] the prerogative of overruling its own decisions.”

Once on the Supreme Court, she will no longer be bound by such considerations and she will be in a position to overturn past decisions. Her strict reliance on Supreme Court precedent while on the appeals court makes it very difficult to predict how she might negotiate that transition.

Interestingly, this chukka stick ruling is the one second amendment case she has dealt with. She has no track record on issues relating to the scope of executive power and gay rights and the thinnest of records on matters relating to abortion and the second amendment - all issues that she is likely to deal with once on the Court. Let’s look at some of these and other topics in more detail.

Civil rights: The case that is likely to attract the most attention in coming weeks is Ricci vs. DeStefano, a case brought about by a white and Hispanic firefighters when New Haven’s fire department did not give out any promotions after black applicants performed disproportionately poorly on a test. Sotomayor was part of a 3-judge panel that issued a short and unsigned ruling affirming a lower court’s decision that the city’s promotion policies were not discriminatory. The case is currently being decided by the Supreme Court, which is expected to reverse Sotomayor’s ruling in the coming weeks.

What could prove controversial in the coming weeks is not necessarily the substance of Sotomayor’s decision as much as the fact that the panel on which she sat did not issue any opinion to complement that of the district court. If Sotomayor was concerned with protecting the Civil Rights Act’s Title VII, why would she not issue a decision defending her ruling in favor of New Haven and thus making it more difficult for the Supreme Court to rule in favor of Ricci?

The ScotusBlog’s Judge Sotomayor’s Appellate Opinions in Civil Cases has far more detailed analyses of Sotomayor’s appeal court decisions on civil rights and work discrimination cases. While Sotomayor has rejected such claims on a number of important decisions, she has often found evidence of discrimination. In The National Journal, Stuart Taylor criticizes her for being “representative of the Democratic Party’s powerful identity-politics wing.”

Abortion: Her only decision was one that drew praise from conservatives because she upheld the “Mexico City policy,” allowing the federal government to ban funding for foreign groups who support abortion procedures. Because she has written no other decision relating to abortion law, she should expect questions on her beliefs about the constitutionality of the right to privacy and her thoughts on state decisis. After all, anti-Roe forces already have 4 votes on the court; Sotomayor might be unlikely to provide a 5th vote but Senators from both parties are likely to press her for hints.

Business: Sotomayor’s record looks to be centrist - just as that of the other liberal Justices. Business Weekly published an article this morning highlighting the fact that her prior decisions do not find her consistently siding with employees or employers, consistently approving federal preemption defenses or rejecting them. One decision that will likely be cited in the weeks ahead is her decision in favor of homeless people paid $1 dollar an hour for menial labor.

Election law: Ballot Access News takes a look at Sotomayor’s opinions on election law, noting that she ruled to make ballot access easier and to ease write-in rules. Perhaps most importantly, she filed a dissent in Hayden vs. Pataki, a case that addressed whether the Voting Right Acts protects minorities when it comes to felon disenfranchisement. Not only did Sotomayor join the main dissent, but she filed a dissenting opinion of her own.

I will write another post later on the politics of the Sotomayor pick, starting with why it’s hard to envision a tough confirmation battle.

Souter’s retirement

Published
by
Taniel
on May 1, 2009
in Supreme Court
. 11 Comments

A vacancy on the Supreme Court is one of those developments everyone might expect but that still manage to shock even the most careful political watchers. How is it possible not to feel exhilarated when informed that a Justice is leaving the Court? I was told of David Souter’s retirement moments after I woke up this morning, and I’ve been riding a SCOTUS high ever since.

Barack Obama will now have the chance to appoint a new Justice just a few months after coming into the White House - a timing that serves as a reminder of the high stakes of last year’s presidential election. Sure, Souter’s retirement will not allow Obama to change the Court’s overall balance of power, but that is no reason to minimize the importance of the President’s appointments.

The Court’s liberal Justices waited for George W. Bush’s second term to run out, but that is probably all Democrats could ask of Souter, of Stevens and perhaps of Ginsburg. John McCain would have gotten the opportunity to replace at least two liberal Justices, plunging the judicial left in the wilderness until well into the 21st century. But President Obama will now be able to ensure that at least two or three of the Court’s liberal seats will be protected for decades to come!

The second reason not to dismiss this vacancy as one liberal replacing another liberal is that it is possible that the Court might be pushed leftward. The 4 liberal Justices are closer to the political center than to the judicial left; Stevens and Souter were appointed by Republicans, Breyer and Ginsburg were viewed as compromise choices by a Bill Clinton unwilling to spark a Supreme Court fight. None shares the Warren Court or Thurgood Marshall’s outlook that judicial power can be used to effect social or economic progress.

If Obama decides that he wants to put such a tradition back on the Court, there are a number of nominees he could turn to. That might not immediately change the make-up of the court’s decisions, but it could mean that some of the dissents would take a new tone than what we have grown accustomed to over the past 15 years. That could matter down the line.

Yet, there is little to suggest that Obama is interested in going down that path; quite the contrary, his profile and the early trend of his appointments (including judicial nominations) suggest he will settle on a pick in the mold of the current liberal Justices. Also, many on the left have come to be weary of using courts to push for social change, so it remains to be seen whether there will be even be much of a push for the president to select a more militant appointee.

Even then, there are considerable differences between potential picks who are moderately liberal. Even if Obama is unlikely to pick someone in Marshall’s mold, there is still a lot to monitor about his short list’s ideological leanings.

Of course, there are other factors for Obama to consider - none more important than gender: With only 1 female Justice on the Court, the imbalance has to be addressed. Another important factor: There has never been a Hispanic Justice, and Obama will be under pressure to appoint a Latino. This is why Judge Sonia Sotomayor (who checks both boxes, not to mention that she could make for an easier confirmation fight since she was appointed to her first job by George H. W. Bush and her second by Clinton) is considered the early front-runner to replace Souter.

Other names mentioned are Judge Diane Wood (who seems to be one of the most moderate names among potential appointees), Solicitor General Elena Kagan, constitutional law professor Cass Sunstein (also viewed as a moderate), Stanford professor Pam Karlan (who could become the favorite of the left), Chief Justice of Georgia Supreme Court Leah Ward Sears, as well as politicians (Secretary of State Hillary Clinton, Governor Jennifer Granholm, Governor Deval Patrick). All of this said, it’s far trickier to predict SCOTUS nominations than to handicap the veepstakes; remember how sure everyone was that Bush would appoint Edith Clement and then Edith Jones the day he settled on Roberts?

In making his choice, there is little reason for Obama to think about the potential of a tough confirmation fight. Most of the press is now writing that who Obama chooses will determine whether there is a congressional battle. I am not convinced by this.

First, while a number of current Justices faced an easy confirmation battle, times have changed and it is impossible to conceive that Republican Senators will not put up a fight against whomever Obama nominates; there will be too much pressure from the conservative base for a partisan fight not to occur.

Second, Republicans have almost no ability to block Obama’s pick: If Al Franken is seated by the end of the summer, Democrats can block any threatened filibuster as long as they can keep their caucus unified. And they are likely to. For one, Arlen Specter has been more opportunistic on judicial nominations than on most issues. Senators like Ben Nelson would be expected to do what he usually does in such situations: vote for cloture, vote against the nomination itself.

After all, do not forget that most of the conservative Democratic Senators were member of the Gang of 14, promising to vote for cloture on judicial nominations unless there are “extraordinary circumstances.” Should we expect any Democratic Senators to invoke “extraordinary circumstances?” More than Arlen Specter’s party switch, then, Souter’s retirement could motivate Republicans to delay Al Franken’s seating and force Democrats to win over at least one GOP vote.

3 Supreme Court decisions and their impact on the presidential race

Published
by
Taniel
on June 27, 2008
in NY-26 and Supreme Court
. 2 Comments

Two weeks ago, the Supreme Court’s decision in Boumediene v. Bush injected Guantanamo in the presidential race and led to a prolonged back-and-forth between John McCain and Barack Obama on the issue of terrorism. This week, three of the Supreme Court’s decisions resonated in the political arena: Davis v. FEC, DC v. Heller and Kennedy v. Louisiana. All decisions were rendered 5-4 along the traditional ideological lines, with Justice Kennedy being the swing vote. As this is an electoral blog rather than a legal one, I will focus here on the political consequences of these rulings. For more information on legal implications, I suggest the always excellent Scotus Blog.

(1) Millionaire’s amendment. The Supreme Court’s striking down a key campaign finance provision yesterday was overshadowed by the decision in the more high-profile gun control case, but it is FEC v. Davis (a 5-4 ruling with Justice Alito writing for the Majority) that will have the most obvious and direct political consequences. Until now, if a candidate spending his own money passed a certain threshold, the limit on the contributions his opponent could receive would rise (from $2300 to $4600 at first). This was an obvious effort to level the playing field and find a way for candidates to survive when facing self-funders trying to buy their way into office (starting with Mike Bloomberg). But the Supreme Court decided that raising the limit only for the opponent was unconstitutional, and that the Millionaire’s amendment constituted a discrimination against a wealthy candidate’s use of his own money and speech under the 1st amendment.

While the decision did not ban regulations on soft money and certainly did not invalidate the McCain-Feingold Act (note that Russ Feingold did not seem saddened by the decision), it constitues a huge problem for candidates who are struggling to remain on par financially. Fundraising disparities are a perennial problem of American politics in any contest, but it is made much more acute when one of the candidates can tap into unlimited resources (Bloomberg outspent Ferrer 17:1 in 2005). While the law might not have been perfect, it was a necessary protection against a candidate’s overspending and its removal will help self-funders over the next few months. SSP has a list of candidates who now gain a bigger advantage and most of them are unsurprisingly Republican, including Vern Bunchanan in FL-13, Marty Ozinga in IL-11, Sens. Elizabeth Dole and Gordon Smith, etc. [Update: It appears that the SCOTUS's decision applies only to the provisions regarding the House. There is little doubt that a court will strike down the same provision for the Senate now that the Supreme Court has ruled, but it remains to be seen whether all of that can happen in time for Bruce Lunsford, Dole and Smith to take advantage of it this cycle.]

However, it is important to note that the “Davis” whose suing the FEC triggered the decision is Jack Davis, a Democratic candidate in NY-26. Davis ran unsuccessfully in 2004 and 2006 against Rep. Reynolds, wasting $4 million of his money in the process even though the Foley scandal in the last weeks of 2006 seemed assured to sink Reynolds for a while. Now, Davis (a wealthy and old industrialist who argued that he was at a… disadvantage because his spending millions would allow his opponent to raise a bit more money) is running again and planning to spend around $3 million to win the Democratic primary and general election…

(2) Gun control. Perhaps the most awaited decision of this term along with Boumediene, DC v. Heller was the Supreme Court’s first ruling on the 2nd amendment in decades and perhaps the first to address the question of whether the right to bear arms is reserved to militias or to individuals. The mere fact that Justice Scalia was the one writing the decision should have been enough to give heartburns to proponents of gun control, and the majority indeed ruled that DC’s ban on handguns was unconstitutional, finding an individual right to bear arms in the second amendment. The New York Times explains that the ruling was narrow enough that it should not challenge most gun control laws across the country, though there will be trouble for a number of bans in cities (Chicago’s ban seems particularly at risk) and the NRA is getting ready to start a new round of litigation.

Scalia laughed off the argument that the Supreme Court had rejected the individual rights interpretation in a 1936 decision, calling that precedent ruling a “virtually unreasoned case.” As was expected, the debate hinged largely on linguistic disagreements regarding the text of the second amendment: Where was the coma, what did that mean and what was the primary clause of the sentence? Justice Stevens fired back at Scalia’s reading that it was a “a strained and unpersuasive reading.”

It is difficult to know how this ruling will play out at the presidential level. On the one hand, it essentially removes an issue from the table by resolving it in favor of conservatives. There will be no hostile passion awakened by this decision among voters hostile to gun control, whereas the GOP would have done everything to be an outlet for their anger had the Supreme Court ruled in favor of DC. In fact, the NRA has never been in a better position — as this is the first time that the SCOTUS finds an individual right to bear arms — and that might remove the issue’s emotional appeal.

On the other hand, the ruling does inject the issue in the national discussion and Republicans are sure to point out that the decision was only 5-4. The individual right to bear arms hangs only by a vote, they will say, and it is important to elect McCain to save (newly-established) gun rights. Over the past 10 years, Democrats have shied away from gun control issues, as the GOP successfully used the gun, gods and gays to drive down Democratic support in the heartland and the last thing the Obama campaign wants in 2008 is for these topics to be central to people’s minds. In fact, the Democratic platform of 2004 endorsed the individual rights interpretation of the second amendment, putting it in line with the Suprme Court’s decision yesterday.

The reactions of the two presidential candidates were thus entirely unsurprising: McCain celebrated the ruling, which he said “ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms.” Obama, on the other hand, sought to tiptoe around the issue without really committing himself. Despite a list of prior occasions on which he had implied that he found no problem in DC’s hand gun ban (as reviewed by Marc Ambinder), his statement yesterday endorsed the second amendment as an individual right and strongly suggested that he was not troubled by the Supreme Court’s decision, which he described as “much-needed guidance.” He in fact chose to concentrate on the parts of the ruling in which Scalia admits that gun rights do not mean that any control is unconstitutional and expressed satisfaction that the right to bear arm was found as “not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe.”

Overall, the issue does not seem to have the urgency even for conservatives that it did in 2000. The refusal by most Democrats to go near this issue makes it very hard for Republicans to hit them with it and it just seems hard to imagine gun rights and Heller v. DC having a major influence on this election.

(3) Death penalty. In Kennedy v. Louisiana, the Supreme Court ruled that the death penalty could not be applied for child rapists and that such a punishment would be unproportional. The majority was moved by the fact that no one has been executed for a crime that did not result in the death of the victim for more than 40 years. And despite the fact that the Court upheld the death penalty with lethal injection just a month ago, the majority opinion in this decision contained statements that were unexpectedly critical of the death penalty: “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

This ruling is the least likely to have an impact on the presidential race, not only because the death penalty has long not been the emotional issue it was in 1988 when it tripped Michael Dukakis, but because the two presidential candidates both denounced the decision. John McCain commented that he was profoundly disturbed that “”there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments.” Obama, meanwhile, criticized the ruling as a “blanket provision” that he “opposed:” “I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution.”

While Obama’s stance might have come to a surprise (it did to me), it shouldn’t have as Obama has long held this position. In the Audacity of Hope, years before this case made it to the Supreme Court, he wrote:

While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes — mass murder, the rape and murder of a child — so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment.

Many on the Left will certainly be annoyed now that Obama’s position has gained more coverage and by the fact that the Democratic nominee is opposing one of the only favorable SCOTUS rulings liberals have had this year. Coming merely days after Obama’s disappointing reversal on FISA, the timing of the Supreme Court decision gives the painful impression of a fast-paced move rightward to prepare for the general election — though his consistency on the death penalty issues suggests this centrism is less of a drift as where he is naturally.