This page can be viewed at http://www.historycommons.org/entity.jsp?entity=jonathan_adler_1
Conservative groups run attack ads and public relations campaigns against three of President Obama’s prospective nominees to replace retiring Supreme Court Justice David Souter, even though Obama has not yet named a replacement. The three being targeted for attack are Judge Diane Wood of the Seventh Court of Appeals, US Solicitor General Elena Kagan, and Judge Sonia Sotomayor of the Second Court of Appeals, who will eventually get the nod (see May 26, 2009). Progressive groups counter the attacks with their own ads and blog campaigns. Wood is targeted as too pro-abortion, Kagan has come under fire for not being supportive enough of the military, and in Sotomayor’s court, one ad says, “the content of your character is not as important as the color of your skin.” Tom Goldstein, who runs the influential SCOTUSblog, a non-partisan website focusing on Supreme Court issues, says: “I think that the Internet and blogs have been great in terms of being able to distribute information easily. The downside is that there is an equal leveling effect in which totally idiotic wing nuts can go off—that’s true on both the far left and far right.… So it contributes to good people being torn apart for no reason.” Gary Marx of the Judicial Confirmation Network, a conservative group that assembled the attack ads, says the spots are an attempt to properly “frame the issue.” Law professor Jonathan Adler says the ads are more about fundraising than any real attempt to derail whichever nominee Obama selects. “If you are a conservative group and you want more Republicans in the Senate, then you really harp on this issue.” Adler says the nomination process for Supreme Court choices has been locked in a “downward spiral” for more than 20 years. “I think we’re talking about the wrong things,” he says. “It can have negative effects on the judiciary. And it could steer people away from the court who are easy to demonize.” The ultimate result, he says, “is a worse judiciary and a tainted confirmation process.” Former Bush administration lawyer Bradford Berenson blames the Obama administration for the preemptive attacks, citing the White House’s choice to conduct what he calls a “lengthy, semipublic deliberation” over the nomination. That “virtually guarantees that the interest groups will mount attacks and exert both public and private pressure in an effort to influence the selection,” he says. “In some ways, that is the point of proceeding in this way—to get a feel for the strength and type of opposition particular candidates will face.” (Oliphant 5/21/2009)
Law professors Thomas Goldstein, the publisher of the well-regarded Supreme Court blog “SCOTUSBlog,” and Jonathan Adler, a contributor to the renowned “Volokh Conspiracy” legal blog, write of their reactions to the article published by Jeffrey Toobin in the New Yorker alleging that Chief Justice John Roberts managed the Citizens United case into becoming a vehicle for rewriting and gutting the nation’s campaign finance laws (see May 14, 2012). Goldstein describes himself as “naturally inclined towards that reading of the history” and an opponent of the Citizens United decision, but takes issue with some of Toobin’s claims. Adler is less inclined to accept Toobin’s interpretations.
Doubt that Roberts Orchestrated Decision - Both Goldstein and Adler write that Toobin’s facts do not lead to his conclusion that Roberts orchestrated the process to allow the Court to overturn the bulk of the nation’s campaign finance legal structure (see March 27, 1990, March 27, 2002 and December 10, 2003); Adler goes one step further and says Toobin’s article “contains plenty of subtle (and not-so-subtle) spin in service of Toobin’s broader narrative of an out-of-control conservative court.” Had Roberts orchestrated the outcome from the beginning, Goldstein writes, it does not follow that Roberts would have written an original opinion much more narrowly focused than the final, transformative opinion written by Justice Anthony Kennedy (see March 15, 2009). Adler echoes this conclusion. Adler also notes that even from the outset, none of the liberal Justices were willing to rule directly against the Citizens United claim, “in no small part because the statutory argument was so weak.” Goldstein does not make this claim. Goldstein also believes that at the outset, the Court’s five conservatives—Kennedy, Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas—may not have been as solid in their support for Kennedy’s more sweeping opinion as Toobin claims.
Doubts about 'Censorship' Claim - Adler notes that Toobin’s interpretation of the “censorship” argument as stumbled into by the government’s lead legal counsel during the first argument is incorrect, saying that the government’s claim that books and magazines could be censored under a strict interpretation of the McCain-Feingold legislation is accurate. He acknowledges that during the second round of arguments, the government backed away from the claim, but not convincingly and not completely. Adler gives more credence to that legal argument than does either Toobin or Goldstein.
Doubts that Roberts Alone Decided to Reargue Case - Both authors claim that Toobin erred in claiming Roberts alone decided that the Citizens United case should be reargued (see June 29, 2009); Goldstein writes, “even if he did, that decision does not seem like an effort to decide Citizens United as broadly as possible as quickly as possible.” Goldstein says that Roberts’s decision to assign the final opinion to Kennedy was not as clever a tactical move as Toobin writes: “Kennedy had already written an opinion deciding the case on that basis that had the support of several members of the majority. It would have been fairly insulting for Roberts to take the assignment away.” He also notes that in June 2010, the Court refused to hear a lawsuit by the Republican National Committee (RNC) that would, if accepted, terminated Congressional restrictions on corporate donations to political parties. Only three of the five conservatives—Kennedy, Scalia, and Thomas—voted to hear argument. “If the Chief Justice were actually leading the charge for revisiting campaign finance law, he presumably would not have voted to affirm,” Goldstein writes.
Some Agreement that Majority Erred - Goldstein agrees with Toobin that the conservative majority may have erred in deciding Citizens United on First Amendment grounds (Adler supports the decision), but he does not agree with Toobin’s choice to single Roberts out for special attention: “[T]hat is a criticism that is just as applicable to the entire majority, as opposed to an indication of maneuvering by him. It also ignores that the alternative may have been no clear holding whatsoever—with dueling members of the majority articulating inconsistent rationales that left the law in flux.” Adler disagrees entirely with Toobin’s characterization of the Citizens United case as “judicial activism,” a characterization that Goldstein does not entirely accept, either.
Speculation about Sources - Adler speculates on Toobin’s sources, musing that to have such detail on the decision-making process would almost certainly indicate that Toobin’s sources are sitting Justices, clerks for said Justices, or others inside the Court itself, and writes: “We don’t know the identities of Toobin’s sources, and some of his claims are difficult to check. His story may reflect how some justices or clerks saw the case, but there may well be another side, and we won’t know until such time as the relevant court documents are released. I also cannot help but wonder whether some of Toobin’s sources, such as former Supreme Court clerks, may have violated their own ethical obligations in disclosing portions of the Court’s internal deliberations. Even if Toobin’s sources were sitting or former [J]ustices, there is something unseemly about the selective disclosure of what went on inside the Court on such a recent case.”
Conclusions - Goldstein concludes by writing that in the future, with a liberal perhaps replacing Kennedy on the Court, if an opportunity occurs for the Court’s new liberal majority to overturn Citizens United in its entirety, “[w]ill progressives really contend that the new and more liberal majority should leave that decision standing? I don’t think so. They will want the Court to get the decision ‘right’.” Regardless of his criticisms, he writes, Toobin’s book is a “must read,” as is the article. Adler is more measured in his praise, writing: “In any event, the article is still worth reading—as I am sure Toobin’s book will be as well. Some portions will just go down better with a healthy dose of salt.” (Tom Goldstein 5/14/2012; Jonathan H. Adler 5/14/2012)
Ed Whelan of the conservative National Review is highly critical of a recent article by the New Yorker’s Jeffrey Toobin about the internal decision-making process behind the 2010 Citizens United decision (see January 21, 2010 and May 14, 2012). Elements of Toobin’s narrative have already been questioned by law professors Thomas Goldstein and Jonathan Adler (see May 14, 2012), though both professors are generally supportive of the article and recommend it for reading. In his first article, Whelan writes that the evidence “doesn’t support his thesis,” and promises a followup article that addresses “some of Toobin’s wild distortions about” the decision, including what he calls Toobin’s “baseless libel” against Chief Justice John Roberts, referencing Toobin’s implication that Roberts engineered the sweeping campaign finance reform of the decision in order to aid Republican candidates. Whelan interprets Toobin’s evidence to say that it shows Justice Anthony Kennedy, not Roberts, enlarged the scope of the Citizens United decision; however, Whelan believes neither interpretation. Some of Toobin’s interpretation of events hinges on a draft dissent penned by Justice David Souter that was withdrawn after Roberts agreed to let the case be re-argued (see June 29, 2009 and September 9, 2009). Whelan implies that he doubts the existence of such a dissent, an implication that cannot be disproven, as Souter sealed his Court records after his retirement (see May 14-16, 2012). If the dissent does exist, Whelan doubts that Toobin has read it. He concludes by casting aspersions on Toobin’s assertion that Roberts engineered the results of the decision “without leaving his own fingerprints.” Roberts cast the deciding vote in the 5-4 split, Whelan notes, and adds that Roberts did not entirely escape criticism for the ruling after it was issued. (Whelan 5/15/2012)
Part Two - The next day, Whelan publishes the second part of the article, and condemns Toobin for asserting that Roberts crafted the decision with the intention of helping Republican candidates in upcoming elections. He calls the assertion “scurrilous,” and says Toobin presents “not an iota of evidence” for the claim. Whelan then writes that no evidence exists to show that the decision has helped Republican candidates more than Democrats (see November 1, 2010 and January 21, 2012), apparently ignoring two years’ worth of evidence showing that in the wake of decisions, outside funding of Republican candidates has swamped Democrats’ efforts to retain parity (see August 2, 2010, April 5, 2010, September 13-16, 2010, September 21 - November 1, 2010, October 2010, Mid-October 2010, October 18, 2010, Around October 27, 2010, October 30, 2010, Mid-November 2010, January 26, 2011 and After, March 2011, (May 4, 2011), May 5, 2011, July 12, 2011, August 4, 2011, October 27, 2011, November 8, 2011, December 1, 2011, January 6, 2012, January 23, 2012, February 6, 2012, February 9, 2012, February 21, 2012, February 21, 2012, February 21, 2012, March 9, 2012, March 26, 2012, Late March 2012, April 13-20, 2012, April 22, 2012, and May 2, 2012). He cites an article by Weekly Standard contributor Andrew Ferguson that denies the “rich and powerful” donate more to Republicans than Democrats, where the only “evidence” Ferguson cited was his assertion that “Democrats are the party of what Democrats used to call the superrich. Only Democrats seem not to realize this.” (Whelan 5/16/2012)
Final Thoughts - Whelan’s final article on the subject approvingly cites an equally negative critique of the Toobin article from Weekly Standard writer Adam White (see May 17, 2012), and insults law professor Richard Hasen’s perspective on the matter (see May 14-16, 2012); after noting that Hasen is a “[l]aw professor and election-law expert,” Whelan advises Hasen to read White’s column more closely. He also derides the idea that the Souter dissent is “secret,” noting that it would have been circulated among the other eight justices, and Justice John Paul Stevens would have had it available to him for his own published dissent. He then quotes Hasen’s critique of Stevens’s “somewhat meandering and ineffective” dissent, turns the phrasing around to insult Souter’s writing style, and says that Souter’s dissent may “reflect… too much of Souter’s draft dissent.” In attacking Hasen’s request for Souter to release the dissent, he contradicts himself by noting that the dissent is “confidential case information” that should remain out of public view. (Whelan 5/17/2012)
Columnist Adam White, writing for the conservative Weekly Standard, lambasts a recent article by the New Yorker’s Jeffrey Toobin about the internal decision-making process behind the 2010 Citizens United decision (see January 21, 2010 and May 14, 2012). Most publications describe the decision as allowing corporations and labor unions to spend money freely in campaigns, but White defines it differently, calling it an affirmation of “a corporation’s First Amendment right to spend money on independent speech on political issues, even when that speech criticizes candidates for office” (see January 21, 2010, January 22, 2010, and February 2, 2010). Law professors Tom Goldstein and Jonathan Adler have found some “spin” in Toobin’s account of events (see May 14, 2012), and law professor Richard Hasen has asked that a draft dissent highly critical of the decision and its methodology be made public to shed light on Toobin’s narrative (see May 14-16, 2012). However, White goes significantly further than any of the professors in tarring Toobin’s article, and in some instances Toobin himself. White writes flatly that everyone outside of “Toobin’s base,” presumably meaning liberals who comprise “Chief Justice [John] Roberts’s critics,” is “skeptical” of the article, and cites Goldstein and National Review columnist Ed Whelan (see May 15-17, 2012) as examples of those presumed skeptics who have “poured cold water” on the story. According to White, Toobin “front-load[ed] his story with easily disprovable mischaracterizations of the case” that [e]ven a cursory review of the case’s briefs, and contemporary news coverage, disproves Toobin’s thesis” of Roberts using a narrowly drawn case to revamp and invalidate most of US campaign finance law. White writes that Toobin’s characterization of the narrow focus of the case is wrong: “The First Amendment stakes were well known, and much discussed, in the run-up to oral argument.” He cites the New York Times editorial published at the time of the first arguments, in March 2009 (see March 23, 2009), warning that if the Court ruled in favor of Citizens United, “it would create an enormous loophole in the law and allow corporate money to flood into partisan politics in ways it has not in many decades. It also would seriously erode the disclosure rules for campaign contributions.” He also notes that respected court reporter Lyle Denniston warned before the oral arguments that the Citizens United case threatened to deliver “a sweeping rejection of Congressional authority to regulate campaign spending by corporations.” Toobin himself made some of the same arguments on CNN the day of the arguments, White notes. He calls Toobin’s version of events in the article a “clumsy fictionalization of the case” designed to vilify Roberts. He also questions Toobin’s characterization of the first arguments from Citizens United (CU) lawyer Theodore Olson, going considerably further than either Goldstein or Adler in accusing Toobin of fundamentally misrepresenting Olson’s original, narrowly focused case. According to White, Olson’s opening argument claimed that the restriction being challenged by CU was “unconstitutional as applied to the distribution of Citizens United’s documentary film through video on demand… [it] plainly exceeds Congress’s sharply limited authority to abridge the freedom of speech.” White claims that Olson cited First Amendment grounds in a portion of the arguments not reported by Toobin, and quotes from Olson’s argument; that quote describes Olson’s citation of the 2007 case Wisconsin Right to Life (WRTL—see Mid-2004 and After and June 25, 2007), which indeed used First Amendment grounds for its successful positioning, and quotes Olson as saying the WRTL decision “errs on the side of permitting the speech, not prohibiting the speech.” White accuses Toobin of deliberately misrepresenting Olson’s argument to “advanc[e] his own anti-Roberts narrative.” White is unable to check the accuracy of Toobin’s behind-the-scenes narrative, as Toobin’s sources are not revealed in the article, but White is “skeptical,” writing, “Given Toobin’s inability of accurately handling straightforward, easily confirmable facts, why should anyone take at face value Toobin’s description of the justices’ private discussions, and their draft opinions—especially when Toobin only describes, never quotes, those deliberations or draft opinions?” Like Adler, Toobin questions the ethics of the person or persons at the Court who “leaked” the story to Toobin. (White 5/17/2012)
Except where otherwise noted, the textual content of each timeline is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike