!! History Commons Alert, Exciting News
Profile: US Supreme Court
US Supreme Court was a participant or observer in the following events:
Federal prosecutors charge Ali Saleh Kahlah al-Marri, the only “enemy combatant” held on US soil (see June 23, 2003), with criminal terrorism charges. Al-Marri is charged with two counts of providing material support to al-Qaeda and conspiring with others to provide material support to al-Qaeda, according to a press release from the Justice Department. He faces a maximum jail sentence of 30 years. US Attorney Rodger Heaton says: “The indictment alleges that Ali al-Marri provided material support to al-Qaeda, which has committed horrific terrorist acts against our nation. As a result, he will now face the US criminal justice system, where his guilt or innocence will be determined by a jury in open court.” Such a decision takes al-Marri out of the military commissions system and places him in the US criminal judicial system. The American Civil Liberties Union (ACLU) is representing al-Marri’s Supreme Court challenge to the “enemy combatant” designation, but criminal charges will not necessarily resolve that issue. Part of the discussion of whether to charge al-Marri centered on the evidence against him: al-Marri’s lawyers claim that much of the evidence against their client was obtained through harsh interrogation techniques and torture, which would render that evidence inadmissible in a US court. Some of the evidence may also be too sensitive to reveal in open court, having been gathered through classified intelligence operations. Lead counsel Jonathan Hafetz says: “[T]he decision to charge al-Marri is an important step in restoring the rule of law and is what should have happened seven years ago when he was first arrested (see February 8, 2002). But it is vital that the Supreme Court case go forward because it must be made clear once and for all that indefinite military detention of persons arrested in the US is illegal and that this will never happen again.” Amnesty International’s Geneve Mantri calls the decision to charge al-Marri “another crucial step in the right direction,” and adds: “If there are individuals who pose a real threat to the United States, the best, most effective means of dealing with them is the current system of justice. There are a number of outstanding questions about how the detainee cases will be reviewed and what the approach of the new administration will be, but Amnesty International welcomes this as an indication that they have faith in the US justice system and rule of law.” [US Department of Justice, 2/27/2009; Washington Post, 2/27/2009; American Civil Liberties Union, 2/27/2009] The ACLU wants the Supreme Court to ignore the criminal charges and rule on al-Marri’s petition for habeas corpus rights; the Justice Department says that the criminal charges render al-Marri’s lawsuit moot. [Lyle Denniston, 2/26/2007]
By a 5-4 vote, the US Supreme Court narrows the provisions of the Voting Rights Act (VRA—see August 6, 1965 and July 27, 2006), ruling in Bartlett v. Strickland that the VRA does not require state governments to draw electoral districts favorable to minority candidates in places where minorities make up less than half the population. The Court rules that race must be considered only in drawing boundaries where a “geographically compact group of minority voters” make up at least 50 percent of a single-member district. Law professor Richard Hasen says that because of the Court’s ruling, 50 percent is now a “magic number.” The decision makes it more difficult for minorities to challenge redistricting efforts that they believe may dilute voting rights after the upcoming 2010 census. Writing for the plurality opinion, Justice Anthony Kennedy writes: “There is an underlying principle of fundamental importance: We must be most cautious before interpreting a statute to require courts to make inquiries based on racial classifications and race-based predictions.” Chief Justice John Roberts and Justice Samuel Alito join with Kennedy’s opinion; Justices Antonin Scalia and Clarence Thomas file a concurring opinion that claims no minorities should ever be able to go to court with complaints about minority vote dilution. The four moderate/liberal justices on the Court dissent. Hasen says that Kennedy’s opinion makes it likely that he will join the Court’s right wing to further limit the VRA in upcoming cases: Hasen says Kennedy seems open to interpreting the VRA “in ever stingier ways.” However, Kennedy also writes: “Racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions.” The case hinges on a decision by the North Carolina legislature to enhance minority representation by creating a voting district that crosses county lines; the Court strikes down the district and rejects arguments that the district is needed for North Carolina to comply with the VRA. Instead, Kennedy writes, only districts where minorities made up more than 50 percent are protected under the VRA. Justice David Souter, writing the four-justice dissent, says that such “crossover districts” are sometimes needed to fulfill the goals of the VRA, and that the Court’s finding will “force the states to perpetuate racially concentrated districts, the quintessential manifestations of race consciousness in American politics.” It will require states “to pack black voters” into districts in which minorities make up the majority, Souter writes, “contracting the number of districts where racial minorities are having success in transcending racial divisions.” [New York Times, 3/9/2009; Washington Post, 3/10/2009]
The US Supreme Court hears the case of Citizens United v. Federal Election Commission, in which the Federal Election Commission (FEC) refused to let the conservative lobbying organization Citizens United (CU) air a film entitled Hillary: The Movie during the 2008 presidential primary season (see January 10-16, 2008). The FEC ruled that H:TM, as some have shortened the name, was not a film, but a 90-minute campaign ad with no other purpose than to smear and attack Senator Hillary Clinton (D-NY) as being unfit to hold office. A panel of appeals judges agreed with the FEC’s ruling, which found the film was “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” As a campaign ad, the film’s airing on national network television came under campaign finance laws, particularly since the film was financed by corporate political donations. CU was allowed to air the film in theaters and sell it in DVD and other formats, but CU wanted to pay $1.2 million to have the movie aired on broadcast cable channels and video-on-demand (pay per view) services, and to advertise its broadcast. CU president David Bossie (see May 1998) hired former Bush Solicitor General Theodore Olson after the Supreme Court agreed to hear the case. Bossie denies that he chose Olson because of their shared loathing of the Clintons—they worked together to foment the “Arkansas Project,” a Clinton smear effort that resulted in Congress unsuccessfully impeaching President Clinton—but because Olson gave “us the best chance to win.” Bossie dedicated the Clinton film to Barbara Olson, Olson’s late wife, who died in the 9/11 attacks (see (9:20 a.m.) September 11, 2001). [Washington Post, 3/15/2009; Christian Science Monitor, 3/23/2009] “I just don’t see how the Federal Election Commission has the authority to use campaign-finance rules to regulate advertising that is not related to campaigns,” Bossie told reporters last year. [Christian Science Monitor, 2/1/2008]
Uphold or Cut Back McCain-Feingold? - Observers, unaware of the behind-the-scenes machinations, believe the case gives the Court the opportunity to either uphold or cut back the body of law stemming from the Bipartisan Campaign Reform Act (BCRA, or McCain-Feingold) campaign finance law (see March 27, 2002), which limits the ability of corporations and labor unions to spend unlimited amounts of money on political advertising before elections. CU is arguing that the BCRA is unconstitutional, having argued before a previous court that the the BCRA law was unconstitutional in the way it was being enforced by the FEC against its film. In its brief to the Court, CU denies the film is any sort of “electioneering,” claiming: “Citizens United’s documentary engages in precisely the political debate the First Amendment was written to protect… The government’s position is so far-reaching that it would logically extend to corporate or union use of a microphone, printing press, or the Internet to express opinions—or articulate facts—pertinent to a presidential candidate’s fitness for office.” The Justice Department, siding with the FEC, calls the film an “unmistakable” political appeal, stating, “Every element of the film, including the narration, the visual images and audio track, and the selection of clips, advances the clear message that Senator Clinton lacked both the integrity and the qualifications to be president of the United States.” The film is closer to a political “infomercial” than a legitimate documentary, the Justice Department argues. The film’s “unmistakable message is that Senator Clinton’s character, beliefs, qualifications, and personal history make her unsuited to the office of the President of the United States,” according to a Justice Department lawyer, Edwin Kneedler, who filed a brief on behalf of the FEC. The Justice Department wants the Court to uphold FEC disclosure requirements triggered by promotional ads, while Olson and CU want the Court to strike down the requirements. Olson says financial backers of films such as H:TM may be reluctant to back a film if their support becomes publicly known. Kneedler, however, writes that such disclosure is in the public interest. The Reporters Committee for Freedom of the Press (RCFP) is joining CU in its court fight, stating in a brief, “By criminalizing the distribution of a long-form documentary film as if it were nothing more than a very long advertisement, the district court has created uncertainty about where the line between traditional news commentary and felonious advocacy lies.” Scott Nelson of the Public Citizen Litigation Group, which supports the BCRA, disagrees with RCFP’s stance, saying, “The idea that [the law] threatens legitimate journalism and people who are out creating documentaries, I think, is a stretch.” [Washington Post, 3/15/2009; Christian Science Monitor, 3/23/2009] The RCFP has said that the movie “does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history.” And a lawyer with the RCFP, Gregg P. Leslie, asked, “Who is the FEC to decide what is news and what kind of format news is properly presented in?” [New York Times, 3/5/2009]
Filled with False Information - The movie was relentlessly panned by critics, who found much of its “information” either misrepresentative of Clinton or outright false. CU made several other films along with the Clinton documentary, which included attacks on filmmaker Michael Moore, the American Civil Liberties Union, illegal immigrants, and Clinton’s fellow presidential contender Barack Obama (D-IL—see October 28-30, 2008). [Washington Post, 3/15/2009; Christian Science Monitor, 3/23/2009]
Arguments Presented - Olson and his opponent, Deputy Solicitor General Malcolm Stewart, present arguments in the case to the assembled Court. Traditionally, lawyers with the Solicitor General (SG)‘s office are far more straightforward with the Court than is usual in advocacy-driven cases. New Yorker reporter Jeffrey Toobin later writes: “The solicitor general’s lawyers press their arguments in a way that hews strictly to existing precedent. They don’t hide unfavorable facts from the justices. They are straight shooters.” Stewart, who clerked for former Justice Harry Blackmun and is a veteran of the SG office since 1993, is well aware of the requirements of Court arguments. Justice Samuel Alito, a conservative justice with a penchant for asking tough questions that often hide their true intentions behind carefully neutral wording, is interested in seeing how far he can push Stewart’s argument. Does the BCRA apply only to television commercials, he asks, or might it regulate other means of communication during a federal campaign? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all those as well?” Stewart says that the BCRA indeed imposes such restrictions, stating, “Those could have been applied to additional media as well.” Could the government regulate the content of a book? Alito asks. “That’s pretty incredible. You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?” Stewart, who tardily realizes where Alito was going, attempts to recover. “I’m not saying it could be banned,” he responds. “I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—” Justice Anthony Kennedy, considered a “swing” justice in some areas but a reliable conservative vote in campaign-spending cases, interrupts Stewart. “Well, suppose it were an advocacy organization that had a book,” Kennedy says. “Your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60- and 30-day periods?” Stewart gives what Toobin later calls “a reluctant, qualified yes.” At this point, Roberts speaks up. According to Toobin, Roberts intends to paint Stewart into something of a corner. “If it has one name, one use of the candidate’s name, it would be covered, correct?” Roberts asks. Stewart responds, “That’s correct.” Roberts then asks, “If it’s a 500-page book, and at the end it says, ‘And so vote for X,’ the government could ban that?” Stewart responds, “Well, if it says ‘vote for X,’ it would be express advocacy and it would be covered by the preexisting Federal Election Campaign Act (FECA—see February 7, 1972, 1974, May 11, 1976, and January 8, 1980) provisions.” Toobin later writes that with their “artful questioning, Alito, Kennedy, and Roberts ha[ve] turned a fairly obscure case about campaign-finance reform into a battle over government censorship.” Unwittingly, Stewart has argued that the government has the right to censor books because of a single line. Toobin later writes that Stewart is incorrect, that the government could not ban or censor books because of McCain-Feingold. The law applies to television advertisements, and stems from, as Toobin will write, “the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.” Legal scholars and pundits will later argue about Stewart’s answers to the three justices’ questions, but, as Toobin will later write, “the damage to the government’s case had been profound.” [New Yorker, 5/21/2012]
Behind the Scenes - Unbeknownst to the lawyers and the media, the Court initially renders a 5-4 verdict in favor of CU, and strikes down decades of campaign finance law, before withdrawing its verdict and agreeing to hear rearguments in the fall (see June 29, 2009). Toobin will write that the entire case is orchestrated behind the scenes, by Roberts and his fellow majority conservatives. Toobin will write of “a lengthy and bitter behind-the-scenes struggle among the justices that produced both secret unpublished opinions and a rare reargument of a case” that “reflects the aggressive conservative judicial activism of the Roberts Court.” Toobin will write that although the five conservatives are involved in broadening the scope of the case, and Kennedy actually writes the majority decision, “the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.” The initial vote on the case is 5-4, with the five conservative justices—Alito, Kennedy, Roberts, Scalia, and Clarence Thomas—taking the majority.
Expansive Concurrence Becomes the Majority Opinion - At the outset, the case is decided on the basis of Olson’s narrow arguments, regarding the issue of a documentary being made available on demand by a nonprofit organization (CU). Roberts takes the majority opinion onto himself. The four liberals in the minority are confident Roberts’s opinion would be as narrow as Olson’s arguments. Roberts’s draft opinion is indeed that narrow. Kennedy writes a concurrence opining that the Court should go further and overturn McCain-Feingold, the 1990 Austin decision (see March 27, 1990), and end the ban on corporate donations to campaigns (see 1907). When the draft opinions circulates, the other three conservatives begin rallying towards Kennedy’s more expansive concurrence. Roberts then withdraws his draft and lets Kennedy write the majority opinion in line with his concurrence. Toobin later writes: “The new majority opinion transformed Citizens United into a vehicle for rewriting decades of constitutional law in a case where the lawyer had not even raised those issues. Roberts’s approach to Citizens United conflicted with the position he had taken earlier in the term.” During arguments in a different case, Roberts had “berated at length” a lawyer “for his temerity in raising an issue that had not been addressed in the petition. Now Roberts was doing nearly the same thing to upset decades of settled expectations.”
Dissent - The senior Justice in the minority, John Paul Stevens, initially assigns the main dissent to Justice David Souter. Souter, who is in the process of retiring from the Court, writes a stinging dissent that documents some of the behind-the-scenes machinations in the case, including an accusation that Roberts violated the Court’s procedures to get the outcome he wanted. Toobin will call Souter’s planned dissent “an extraordinary, bridge-burning farewell to the Court” that Roberts feels “could damage the Court’s credibility.” Roberts offers a compromise: Souter will withdraw his dissent if the Court schedules a reargument of the case in the fall of 2009 (see June 29, 2009). The second argument would feature different “Questions Presented,” and the stakes of the case would be far clearer. The four minority justices find themselves in something of a conundrum. They feel that to offer the Kennedy opinion as it stands would be to “sandbag” them and the entire case, while a reargument would at least present the issues that the opinion was written to reflect. And there is already a 5-4 majority in favor of Kennedy’s expansive opinion. The liberals, with little hope of actually winning the case, agree to the reargument. The June 29, 2009 announcement will inform the parties that the Court is considering overturning two key decisions regarding campaign finance restrictions, including a decision rendered by the Roberts court (see March 27, 1990 and December 10, 2003) and allow essentially unlimited corporate spending in federal elections. Court observers will understand that the Court is not in the habit of publicly asking whether a previous Court decision should be overruled unless a majority is already prepared to do just that. Toobin will call Roberts and his four colleagues “impatient” to make the decision, in part because an early decision would allow the ruling to impact the 2010 midterm elections. [New Yorker, 5/21/2012]
Created to Give Courts Shot at McCain-Feingold - Critics, as yet unaware of the behind-the-scenes maneuvering, will later say that CU created the movie in order for it to fall afoul of the McCain-Feingold campaign finance law, and give the conservatives on the Court the opportunity to reverse or narrow the law. Nick Nyhart of Public Campaign will say: “The movie was created with the idea of establishing a vehicle to chip away at the decision. It was part of a very clear strategy to undo McCain-Feingold.” Bossie himself will later confirm that contention, saying: “We have been trying to defend our First Amendment rights for many, many years. We brought the case hoping that this would happen… to defeat McCain-Feingold.” [Washington Post, 1/22/2010] CU’s original lawyer on the case, James Bopp, will later verify that the case was brought specifically to give the Court a chance to cut back or overturn campaign finance law (see January 25, 2010). The Court will indeed overturn McCain-Feingold in the CU decision (see January 21, 2010).
Entity Tags: Clarence Thomas, US Department of Justice, Theodore (“Ted”) Olson, Scott Nelson, US Supreme Court, Bipartisan Campaign Reform Act of 2002, Citizens United, Barbara Olson, American Civil Liberties Union, Anthony Kennedy, Barack Obama, Samuel Alito, Reporters Committee for Freedom of the Press, William Jefferson (“Bill”) Clinton, Michael Moore, Hillary Clinton, Gregg P. Leslie, Nick Nyhart, Edwin Kneedler, David Souter, Federal Election Commission, James Bopp, Jr, John Paul Stevens, David Bossie, John G. Roberts, Jr, Jeffrey Toobin, Malcolm Stewart
Timeline Tags: Civil Liberties
The New York Times, in an unsigned editorial, warns of the possible ramifications of an upcoming Supreme Court case, Citizens United v. Federal Election Commission. The case was argued on March 15, eight days before the Web publication date of the editorial (see March 15, 2009) and nine days before the editorial is published in print; it is unclear in retrospect why the editorial is written as if the arguments have not yet taken place, or whether the dates of the published version are accurate. The Times sums up the case—a conservative nonprofit organization, Citizens United (CU), planned to air a 90-minute film that was highly critical of presidential candidate Hillary Clinton (D-NY) in the days before 2008 presidential primary elections, in violation of the 2002 Bipartisan Campaign Reform Act (BCRA, or “McCain-Feingold”—see March 27, 2002) that bans “electioneering communications” within 30 days of a primary election. CU was aware of the law, and filed a suit claiming that the law unconstitutionally violated its First Amendment rights. “The Supreme Court should affirm that ruling,” the Times states. The CU briefs “mak[e] a wide array of claims,” the “most dangerous” of which is a request to overturn the 1990 Austin Court decision (see March 27, 1990) that banned corporations from using monies from their general treasuries. The Times states: “If Citizens United prevails, 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.” [New York Times, 3/23/2009]
Supreme Court Justice Clarence Thomas, in a rare public appearance to answer questions from the winners of a high school essay contest sponsored by the Bill of Rights Institute, says he does not embrace the Bill of Rights. “Today there is much focus on our rights,” he says. “Indeed, I think there is a proliferation of rights.” He suggests that there should be two “alternatives” to the document, saying: “I am often surprised by the virtual nobility that seems to be accorded those with grievances. Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?” [New York Times, 4/13/2009]
Montana Governor Brian Schweitzer (D-MT) signs into law House Bill 246. It exempts Montana-made guns from federal regulation. The law is the latest in a long list of legislative initiatives designed to strip power from the federal government and give it to the states. “It’s a gun bill, but it’s another way of demonstrating the sovereignty of the state of Montana,” Schweitzer says. The impact is limited to Montana, which currently has only a small number of specialty gun makers who make mostly replica and recreation rifles from US history, and most of their customers are out of state. However, supporters of the new law hope it will trigger a court case testing the legal basis for federal rules governing gun sales. State Representative Joel Boniek (R-MT), who sponsored the bill, said during the House debate, “What we need here is for Montana to be able to handle Montana’s business and affairs.” Many legislators among the 50 states have introduced legislation designed to push back against what they see as unconstitutional federal intrusion, often in response to the Obama administration’s economic stimulus plan. Some legislators consider themselves part of, or sympathetic to, the “tenther” movement, that construes the Tenth Amendment of the Constitution as vastly restrictive of the federal government’s powers. Another Montana representative, Michael More (R-MT), recently said of the gun bill and similar legislation, “The whole goal is to awaken the people so that we can return to a properly grounded republic.” Legislatures in 15 other states are considering resolutions that attempt to take back power from the federal government. “The balance has swung far to the extreme to the empowerment of the federal government, and to the harm of the individual states,” More says. However, critics warn that the “tenther” movement and the move to give power to the states is in line with anti-government militia ideals. “When you really actually get in and look at it there is a lot of what we feel is very dangerous, very anti-government language that reads very similar to posters for the militia movement in the 1990s,” says Travis McAdam of the Montana Human Rights Network. Montana Senator Christine Kaufmann (D-MT) says, “I do think that there is a kind of renewed vehemence to this kind of right-wing rhetoric being spewed by conservative talk show hosts to rile the troops and they are using the fact that we have a Democratic, black president as one of their rallying calls.” In Montana, the states’ rights bills are being sponsored by freshman legislators who were elected as part of an effort to oust more moderate Republicans and replace them with more conservative, “tea party-friendly” representatives. Supporters of House Bill 246 now intend to find someone to challenge a regulation by the Bureau of Alcohol, Tobacco and Firearms (BATF) that requires federal dealership licensing to build and sell firearms; they will use that pretext to file a lawsuit that they hope will end in the Supreme Court. The Montana Shooting Sports Association, which drafted House Bill 246, has said it will raise the money to pay for any legal costs. [Associated Press, 4/16/2009] Author and columnist David Neiwert later notes, in agreement with Kaufmann, that the Montana gun bill echoes the ideas of “state sovereignty” promoted by radical-right militia groups and “constitutionalists” in the 1990s. The idea behind the bill originated with Charles Duke (R-CO), a far-right Colorado legislator from the 1990s who had close ties to the Rocky Mountain-area militias (see May 15-21, 1996). Duke is considered one of the first “tenther” proponents, and is popular with white supremacists who espouse the “Christian Identity” belief system (see 1960s and After). Neiwert will also note that the gun legislation prompts a series of segments from Fox News host Glenn Beck on the bill and how he hopes it is the first of a larger number of legislative and court initiatives that will ultimately cripple the federal government. [Crooks and Liars, 5/15/2009]
Entity Tags: Montana Shooting Sports Association, David Neiwert, Christine Kaufmann, Charles Duke, Brian Schweitzer, Glenn Beck, Michael More, Obama administration, US Bureau of Alcohol, Tobacco, Firearms and Explosives, Joel Boniek, US Supreme Court, Travis McAdam
Timeline Tags: Civil Liberties
The announcement that Supreme Court Justice David Souter is retiring is already sparking a tremendous fundraising effort among conservative opposition groups, according to the Congressional Quarterly. “This is a nuclear weapon for the conservatives out there,” says conservative fundraiser Dan Morgan. “When you do fundraising, there’s an emotional component in this, and boy the emotion is there magnified times 100.” President Obama is expected to choose a replacement for Souter who is somewhat left of center, a choice that will be portrayed by right-wing groups as a threat to their positions on abortion, gun rights, gay marriage, and property rights, among other “hot-button” social and legal issues (see May 26, 2009). The upshot: lots of money gathered to oppose Obama’s prospective nominee. “Although Souter may be a more difficult case to make as his voting record is center-left, it does open the door for discussion of who, and how left a replacement, President Obama may choose,” says veteran Republican fundraiser Linus Catignani. “It also gives clarity to the power of the presidency and generates lots of chatter regarding the fact that Obama may make up to four replacements in short order. That obviously paints a very scary picture for many conservatives.” Catignani says that when conservative Justices John Roberts and Samuel Alito (see September 29, 2005 and October 31, 2005 - February 1, 2006) were nominated, Republican fundraisers used them as touchstones for their efforts to gather money—that time in the interest of promoting and defending the nominees. Democrats used their nominations to raise funds in opposition, much as Republicans are doing now, and Democrats will use the nomination to raise funds in defense of Obama’s nominee. Souter’s replacement will energize and invigorate a flagging and dispirited conservative base, says former Democratic National Committee Chairman Steve Grossman. “This can be a catalyst properly handled that can get people back into a sense of stakeholdership.” It can also be used to energize Democrats to fund efforts to thwart the Republicans’ own efforts to derail the nomination. Morgan says: “The Supreme Court is great. That’s going to be mail, that’s going to be phone calls. The clients I work with are in meetings already. There are letters being written already.” [Congressional Quarterly, 5/1/2009]
New Republic legal correspondent Jeffrey Rosen, a law professor at George Washington University, writes an analysis of appeals court judge Sonia Sotomayor, considered by many to be a leading candidate to replace retiring Justice David Souter on the Supreme Court.
Rose from Poverty to Consideration for High Court - Rosen gives a brief biographical sketch of Sotomayor, whom he labels as a “compelling” candidate both for her legal accomplishments and her life story. Sotomayor is the daughter of poor Puerto Rican immigrants, grew up in the South Bronx, and graduated with high academic honors from Princeton and Yale. She has served as a prosecutor, a corporate litigator, and a judge. If nominated and confirmed, Sotomayor would be the Court’s first Hispanic member and only its third female member. She has the support of both New York senators, Democrats Charles Schumer and Kirsten Gillibrand.
Conflicting Opinions Largely from Anonymous Sources - Rosen notes that her former clerks praise her as “demanding but thoughtful” and “commit[ted] to legal fairness,” a “rule-bound pragmatist—very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background.” Rosen quotes several anonymous sources—“nearly all… former law clerks… or former federal prosecutors in New York”—who, he says, question “her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.” According to one former law clerk, Sotomayor is “not that smart and kind of a bully on the bench,” egotistical, and “domineering.” In contrast, one of his named sources, fellow Second Circuit appeals court judge Jose Cabranes, said of her, “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.” Anonymous sources tell Rosen that Sotomayor is more apt to quibble with a colleague’s grammar and syntax rather than the focus of their legal arguments. Another former clerk praises Sotomayor for being tough-minded and “impressive.” Rosen admits that he has not read enough of Sotomayor’s opinions “to have a confident sense of them,” nor has he “talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths. It’s possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities. But they’re not motivated by sour grapes or by ideological disagreement—they’d like the most intellectually powerful and politically effective liberal justice possible. And they think that Sotomayor, although personally and professionally impressive, may not meet that demanding standard.” Rosen concludes that President Obama would be taking an unnecessary “gamble” by nominating her to the high court. [New Republic, 5/4/2009]
Repercussions of Analysis - Rosen’s column triggers several demeaning characterizations of Sotomayor in the conservative press (see May 4, 2009 and May 5, 2009), characterizations that will intensify when she is nominated for the Court (see May 26, 2009). His use of anonymous sources to base his negative coverage will be repudiated by a number of critics (see May 5, 2009).
Mark Hemingway of the conservative National Review uses law professor Jeffrey Rosen’s analysis of prospective Supreme Court nominee Sonia Sotomayor (see May 4, 2009) to call her “dumb and obnoxious.” [National Review, 5/4/2009] Fellow Review columnist John Derbyshire responds to Hemingway’s slam by writing: “Judge Sotomayor may indeed be dumb and obnoxious; but she’s also female and Hispanic, and those are the things that count nowadays. Get with the program, Pal.” [National Review, 5/4/2009] Less than a month later, Sotomayor will be nominated to the Court (see May 26, 2009). After her nomination, Hemingway will attempt to backtrack from his characterizations of Sotomayor, claiming: “I never ‘attacked’ Sotomayor. I was only characterizing what Jeffrey Rosen wrote.” [National Review, 5/26/2009]
Columnist Marc Ambinder joins in the wave of conservative criticism against prospective Supreme Court nominee Sonia Sotomayor (see May 4, 2009) triggered by an analysis in the New Republic (see May 4, 2009). Ambinder warns the Obama administration not to choose Sotomayor simply because some liberals and Hispanics want her on the bench, calls her “solid if unspectacular,” and writes, “And the respectable intellectual center… is beginning to have doubts.” Ambinder does not note who, exactly, makes up the “intellectual center” he cites. [Atlantic Monthly, 5/5/2009] Nation columnist Chris Hayes retorts: “One gossipy article from Jeff Rosen means ‘the respectable intellectual center… is beginning to have doubts.’ Really?” [Salon, 5/5/2009] Less than a month later, Sotomayor will be nominated to the Court (see May 26, 2009).
Atlantic columnist Ta-Nehisi Coates lambasts law professor Jeffrey Rosen for his recent analysis of prospective Supreme Court nominee Sonia Sotomayor (see May 4, 2009). Citing Rosen’s line, “I haven’t read enough of Sotomayor’s opinions to have a confident sense of them, nor have I talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths,” Coates responds: “Rosen is attacking Sotomayor’s ability to do the necessary intellectual heavy-lifting, while explicitly neglecting to do any of his own. In this instance, his piece reads like a burglar’s brief against rampant criminality. Authored mid-robbery, no less.” She also slams her Atlantic colleague Marc Ambinder’s criticisms of Sotomayor (see May 5, 2009), noting, “You don’t get to be the ‘respectable intellectual center’ and then practice your craft in the gossip-laden, ignorant muck.” [Atlantic Monthly, 5/5/2009] Former civil litigator Glenn Greenwald joins Coates in criticizing the early attacks on Sotomayor. Greenwald calls Rosen’s reliance on anonymous sources to attack Sotomayor’s character and professional conduct “shoddy, irresponsible, and… intellectually irresponsible,” and cites several instances where Rosen’s reporting has been countered by sources willing to go on the record. Greenwald writes of his amazement at how quickly Sotomayor has been “transformed in conventional wisdom, largely as a result of Rosen’s piece, into a stupid, shrill, out-of-her-depth Puerto Rican woman who is being considered for the Supreme Court solely due to anti-merit, affirmative action reasons.” Greenwald writes that he twice faced Sotomayor in court, and found her “extremely perceptive, smart, shrewd, and intellectually insightful.” She could be forceful, “at times unpleasantly so,” he recalls, and remembers being dressed down by her for a “substantial procedural mistake” he committed, but notes that such behavior by judges “is the opposite of uncommon.” Greenwald writes that behavior usually characterized as “tough,” “forceful,” and “authoritative” by white males is often reworked into characterizations of “domineering” and “egotistical” when the same behaviors are exhibited by women. Greenwald also notes that Rosen was one of the strongest media voices in favor of the nomination of conservative jurist John Roberts (see September 29, 2005) to the Court. [Salon, 5/5/2009] Less than a month later, Sotomayor will be nominated to the Court (see May 26, 2009).
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.” [Los Angeles Times, 5/21/2009]
Barack Obama and Sonia Sotomayor during the nomination announcement. [Source: Associated Press]President Obama nominates Second Circuit Appeals Court Judge Sonia Sotomayor as his candidate to replace retiring Supreme Court Justice David Souter (see May 1, 2009). Sotomayor is a Hispanic woman from an underprivileged background with a stellar academic record and an extensive legal background, having served as a prosecutor, a corporate lawyer, and a judge for 17 years, having been first appointed to the bench by former President George H. W. Bush. She is expected to receive heavy support from Democrats. Republicans say they are waiting for more information to decide whether to mount organized opposition. Political observers say such a move would be chancy for Republicans, who need to attract more support from Hispanic and female voters. Obama calls Sotomayor a judge with an impressive intellect and a great capacity for empathy, and a jurist who renders judgments with “an understanding of how the world works and how ordinary people live.” He notes that Sotomayor has more legal experience than any currently sitting justice had when they ascended to the high court. Sotomayor would be the first Hispanic and the third woman to serve on the Court. Sotomayor is considered more or less ideologically consistent with the moderate-to-liberal Souter, and thus would not change the court’s ideological makeup. The Obama administration says it wants Sotomayor approved in time for the Court’s October session. In her acceptance speech, Sotomayor says of herself, “I am an ordinary person who has been blessed with extraordinary opportunities and experiences.” Of her position as a jurist, she says she is driven first and foremost by the rule of law and the principles laid down in the Constitution. “Those principles,” she says, “are as meaningful and relevant in each generation as the generation before.” Sotomayor was chosen over three other short-listed finalists: fellow appellate court judge Diane Wood, Solicitor General Elena Kagan, and Homeland Security Secretary Janet Napolitano. It is likely that one or more of the people on the list may become nominated to the court as well: Justice John Paul Stevens is 89 years old, and Justice Ruth Bader Ginsburg, 76, suffers from pancreatic cancer. [Associated Press, 5/26/2009; CNN, 5/26/2009] In response to the nomination, Republican National Committee chairman Michael Steele says: “Republicans look forward to learning more about… Sotomayor’s thoughts on the importance of the Supreme Court’s fidelity to the Constitution and the rule of law. Supreme Court vacancies are rare, which makes Sonia Sotomayor’s nomination a perfect opportunity for America to have a thoughtful discussion about the role of the Supreme Court in our daily lives. Republicans will reserve judgment on Sonia Sotomayor until there has been a thorough and thoughtful examination of her legal views.” [Think Progress, 5/26/2009]
Conservative activist Curt Levey, the executive director of the Committee for Justice, attacks Supreme Court nominee Sonia Sotomayor (see May 26, 2009) as an “intellectual lightweight,” and compares her to the Bush administration’s failed nomination of White House lawyer Harriet Miers for the Court (see October 3-27, 2005). “I would point you to the Harriet Miers nomination under the second President Bush,” he tells radio listeners on WTOP. “She was also, many people felt, an intellectual lightweight, picked because she was a woman, people felt. And even though Republicans controlled the Senate, she ultimately had to withdraw. And that could happen here. This is someone who clearly was picked because she’s a woman and Hispanic, not because she was the best qualified. I could certainly see red and purple state Democrats gawking at it and she may very well have to withdraw her nomination.” [Think Progress, 5/26/2009] At the Washington Post and National Review, conservative columnist Ramesh Ponnaru attacks Sotomayor as “Obama’s Harriet Miers.” He continues to slam the nominee for asserting that judges sometimes make policy, claims—without naming names—that some Democrats believe she lacks “the intellect to be on the high court,” falsely claims that President Obama chose her because she passed “a pro-abortion litmus test,” criticizes her for having “empathy, at least for some groups” (a veiled reference to her Hispanic heritage and her gender), and claims that she has a “high reversal rate” before the Court. He calls her “the crassest of political picks.” [National Review, 5/26/2009; Washington Post, 5/26/2009]
Conservative talk show host Rush Limbaugh attacks Supreme Court nominee Sonia Sotomayor (see May 26, 2009), a Hispanic woman, and President Barack Obama, a half-African-American male, over their race, accusing them of racism. Limbaugh tells his listeners: “So, here you have a racist. You might want to soften that and you might wanna say a reverse racist. And the libs [liberals] of course say that minorities cannot be racists because they don’t have the power to implement their racism. Well, those days are gone because reverse racists certainly do have the power to implement their power. Obama is the greatest living example of a reverse racist and now he’s appointed one.” Limbaugh goes on to call Sotomayor a “party hack.” [Real Clear Politics, 5/26/2009; Politico, 5/27/2009; CNN, 5/27/2009]
New Republic columnist Jeffrey Rosen, stung by criticism of his recent article using anonymous sources questioning the character and reputation of Supreme Court nominee Sonia Sotomayor (see May 4, 2009, May 5, 2009, and May 26, 2009), attempts to backtrack from his original assertions. He writes, “Of course, Judge Sotomayor should be confirmed to the Supreme Court,” and continues: “In my view the strongest case to be made for Sotomayor is not her inspiring life story: [Supreme Court Justice] Clarence Thomas overcame similar personal obstacles, but far from giving him a sense of empathy, his background has created a sense of anger and ideological rigidity. Instead, the strongest case to be made for Sotomayor is the idea that the range of her experience—as a trial judge, appellate judge, and commercial litigator—might give her the humility to recognize that courts participate in a dialogue with the political branches when it comes to defining constitutional rights, rather than having the last word.… Conservatives are already citing my initial piece on Sotomayor as a basis for opposing her. This willfully misreads both my piece and the follow-up response. My concern was that she might not make the most effective liberal voice on the Court—not that she didn’t have the potential to be a fine justice. Questions of temperament are often overlooked, but history suggests that they are the most relevant in predicting judicial success. (Justice [Antonin] Scalia may be a brilliant bomb-thrower, but has failed in his attempts to build coalitions and bipartisan majorities.) Now is the time to think more broadly about the role Justice Sotomayor is likely to play on the Supreme Court, and I look forward to doing that in the weeks ahead.” [New Republic, 5/26/2009]
Former Justice Department lawyer John Yoo, who authored numerous legally untenable memos authorizing torture and the preeminence of the executive branch (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, November 6-10, 2001, and January 9, 2002), writes that in the nomination of Sonia Sotomayor to the Supreme Court (see May 26, 2009), “empathy has won out over excellence in the White House.” Yoo, who calls the Justice she is replacing, David Souter, an equally “weak force on the high court,” writes that President Obama “chose a judge distinguished from the other members of [his list of potential nominees] only by her race. Obama may say he wants to put someone on the Court with a rags-to-riches background, but locking in the political support of Hispanics must sit higher in his priorities.” Sotomayor’s record is “undistinguished,” Yoo writes, and “will not bring to the table the firepower that many liberal academics are asking for.” She will not be the intellectual and legal equal of conservatives Antonin Scalia and Clarence Thomas, he says. “Liberals have missed their chance to put on the Court an intellectual leader who will bring about a progressive revolution in the law.” Conservatives should challenge her nomination, Yoo writes, because the Court is “a place where cases are decided by a faithful application of the Constitution, not personal politics, backgrounds, and feelings. Republican senators will have to conduct thorough questioning in the confirmation hearings to make sure that she will not be a results-oriented voter, voting her emotions and politics rather than the law.” [American Enterprise Institute, 5/26/2009]
Continuing the conservative lambasting of Supreme Court nominee Sonia Sotomayor (see May 26, 2009), columnist Michael Goldfarb attacks her as an advocate of “affirmative action” for Hispanics and writes, “[P]erhaps what’s most striking is that on the issue of diversity, Obama seems to have the views of a 21-year-old Hispanic girl—that is, only by having a black president, an Hispanic justice, a female secretary of state, and Bozo the Clown as vice president will the United States become a true ‘vanguard of societal ideas and changes.’” [Weekly Standard, 5/26/2009]
The conservative National Review lambasts Supreme Court nominee Sonia Sotomayor (see May 26, 2009) for being a “liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written.” The Review’s Wendy Long writes: “She thinks that judges should dictate policy, and that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench (see October 26, 2001). She reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety. On September 11, America saw firsthand the vital role of America’s firefighters in protecting our citizens. They put their lives on the line for her and the other citizens of New York and the nation. But Judge Sotomayor would sacrifice their claims to fair treatment in employment promotions to racial preferences and quotas. The Supreme Court is now reviewing that decision. She has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court.” [National Review, 5/26/2009]
Echoing and repeating his calls for President Obama to “fail” (see January 16, 2009), conservative radio host Rush Limbaugh, in a diatribe against Supreme Court nominee Sonia Sotomayor (see May 26, 2009), says he wants her to fail as well. “Do I want her to fail? Yeah,” he says. “Do I want her to fail to get on the court? Yes! She’d be a disaster on the court. Do I still want Obama to fail as president? Yeah. AP [Associated Press], you getting this? He’s going to fail anyway, but the sooner the better.” [Think Progress, 5/26/2009]
Former Bush White House political director Karl Rove attacks Supreme Court nominee Sonia Sotomayor (see May 26, 2009) on the grounds that she is less than intelligent. During a debate with former Clinton political director James Carville, moderator Charlie Rose notes, “She is very smart.” Rove responds, “Not necessarily.” Rose notes that Sotomayor “went to Princeton where she graduat[ed] with honors and then went on to Yale Law School,” to which Rove replies, “I know lots of stupid people who went to Ivy League schools.” Rose points out that Rove himself never graduated from college, and Rove says, “Message to the kids out there—don’t do what I did—I am the last of a generation.” [Huffington Post, 5/26/2009] In an appearance on Fox News, Rove continues denigrating Sotomayor’s intellect, saying that according to former colleagues, she was more like a “schoolmarm” than an intellectual force. Rove says: “What she would do is she would mark them up [legal opinions] like she was your English school teacher and—with your typos and misspellings and other words that she wanted to have changed and send it back to her colleagues. Not exactly the best way to ingratiate yourself with your colleagues. Rather than say, ‘Oh, I thought you had an interesting legal argument here and I’d like to talk to you more about this here,’ she was acting like sort of a schoolmarm.” [Think Progress, 5/27/2009]
Representative Lamar Smith (R-TX) attacks Supreme Court nominee Sonia Sotomayor (see May 26, 2009) for what he calls “personal bias based on ethnicity and gender.” Smith says, “Judge Sotomayor will need to reassure the country that she will set aside her biases, uphold the rule of law, and interpret the Constitution as written, not as she believes it should have been written.” Senator Jeff Sessions (R-AL), who will vote to confirm or deny Sotomayor’s nomination as a member of the Senate Judiciary Committee, says Sotomayor has shown disrespect for the law in her time on the bench. Eleven years ago, Sessions voted against allowing her to become an appeals court judge. Sotomayor was confirmed despite Sessions’s vote. Now, Sessions says she will get a “fair and respectful hearing” before the committee, but says he and other conservatives worry about her “history of activism.” Legal analysts say Sotomayor has a history of complying with the law, and far from being a judicial activist, has usually shown judicial restraint and a deference to existing case law and judicial precedent. [Fox News, 5/26/2009] In a statement, Senator James Inhofe (R-OK) questions “her ability to rule fairly without undue influence from her own personal race, gender, or political preferences.” [Senator James Inhofe, 5/26/2009] Liberal columnist Dana Goldstein retorts that the same question could be asked of the seven white males already on the bench, and asks sardonically, “White men are raceless and genderless, haven’t you heard?” [American Prospect, 5/26/2009]
Tom Goldstein, a veteran lawyer who maintains the Supreme Court-focused, nonpartisan “SCOTUSblog,” writes that Supreme Court nominee Sonia Sotomayor (see May 26, 2009) will be the focus of caricatures and character attacks from the right, just as Justices Samuel Alito (see October 31, 2005 - February 1, 2006) and John Roberts (see September 29, 2005) were from the left. Goldstein’s assessment is echoed by ABC’s “The Note,” an influential daily political newsletter. Goldstein, who has argued cases before the Court over 20 times, writes that barring some serious revelation of ethical violations, Sotomayor is almost guaranteed to be confirmed by the Senate, but before that, she will be subjected to attacks from what he calls “committed ideologues.” Few “mainstream Republican politicians will vocally join the criticism,” he predicts. In a political sense, it would be disastrous for Republicans to mount serious opposition to a Hispanic woman, or Latina. “To Hispanics, the nomination would be an absolutely historic landmark,” Goldstein writes. “It really is impossible to overstate its significance. The achievement of a lifetime appointment at the absolute highest levels of the government is a profound event for that community, which in turn is a vital electoral group now and in the future.” Such attacks would comprise “a strategy that risks exacting a very significant political cost among Hispanics and independent voters generally, assuming that the attacks aren’t backed up with considerable substance.” The attacks will come from any of four major areas, Goldstein predicts. [Tom Goldstein, 5/26/2009]
Attacks Led by Conservatives outside Congress - ABC’s Jonathan Karl agrees. He writes: “At the start, Senate Republicans will likely make innocuous statements about the need to thoroughly review her record, but make no mistake, GOP leaders, with a big assist from outside conservative groups, will wage a vigorous campaign against this nomination.… Senate Republicans don’t expect to defeat the Sotomayor nomination. But they hope to raise enough questions about the nomination to make it a tough vote for Democratic senators in more conservative states. They will also use the confirmation battle as an opportunity to motivate a demoralized Republican base” (see May 1, 2009). [ABC News, 5/26/2009]
Attacks on Sotomayor's Intellect - The first series of attacks, Goldstein writes, will focus on the claim that she “is not smart enough for the job.” He writes that this is a powerful line of argument with an equally strong potential for backlash, so it will be handled carefully and obliquely. Unfortunately for this position, he writes, “Sotomayor is in fact extremely intelligent.” She graduated at the top of her class at Princeton, and her judicial opinions “are thorough, well-reasoned, and clearly written. Nothing suggests she isn’t the match of the other Justices.” Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 29, 2009, and May 31, 2009).
'Liberal Ideologue and Judicial Activist' - The second line of attack will be purely ideological, focusing on the claim that she is a “liberal ideologue” and a “judicial activist.” While Sotomayor would be on the left of the Court, Goldstein writes, she is hardly a radical liberal. She is very similar to the man she is slated to replace, Justice David Souter, as a moderate, centrist liberal. Her appellate opinions as reviewed by the Court put her squarely with the left-center wing of the current Court. Karl writes, “They will call her an ‘activist’ judge intent on making law from the bench, not interpreting law.” Their predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 28, 2009, May 28, 2009, May 29, 2009, May 29, 2009, and June 3, 2009).
Intolerant of Positions Contrary to Her Own - The third wave of attack will claim, Goldstein writes, that she is intolerant of positions with which she disagrees. Proponents of this line of attack will focus on a decision she wrote that upheld affirmative action laws to the detriment of white firefighters, on a panel appearance in which she acknowledged that appellate judges sometimes make public policy, and a speech where she talked about the role her gender and ethnicity played in her decision-making. They will also focus, Karl notes, on a 2002 speech where she said the sex and ethnic origin of a judge can affect their decisions. Sotomayor said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life” (see October 26, 2001). “These reeds are too thin for that characterization to take hold,” Goldstein writes. The public “is easily able to accept a judge’s recognition of the lawmaking effects of her decisions and the influences of her background. There just isn’t any remotely persuasive evidence that Judge Sotomayor acts lawlessly or anything of the sort.” Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 29, 2009, and June 3, 2009). [ABC News, 5/26/2009; Tom Goldstein, 5/26/2009]
Personality Characteristics - The fourth wave of attacks will characterize her as, Goldstein writes, “gruff and impersonable,” based on some excerpts from oral arguments and a few anonymous criticisms voiced in the “Almanac of the Federal Judiciary.” Sotomayor can easily quash these attacks with a few well-turned statements in the public eye. From his own experiences arguing cases before the Court, Goldstein believes Sotomayor is similar in demeanor and temperment to Justices Roberts, Souter, and Antonin Scalia. Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 27, 2009. May 29, 2009, and June 3, 2009).
Missed Line of Attack - Neither Goldstein nor Karl write about the direct attacks on Sotomayor’s race and gender that some conservatives will launch (see May 26, 2009, May 26, 2009, May 27, 2009, May 28, 2009, May 28, 2009, May 28, 2009. May 29, 2009, June 2, 2009, June 3, 2009, and June 5, 2009). Goldstein’s own analysis of Sotomayor’s rulings will thoroughly disprove the allegations of racial bias (see May 29, 2009).
Conclusion - Goldstein concludes, “All in all… her easy confirmation seems assured.” [Tom Goldstein, 5/26/2009]
Tom Tancredo (R-CA), a former House member and 2008 presidential candidate known for his radical isolationism and anti-immigrant views (see September 9, 2006), tells MSNBC host Ed Schultz that Supreme Court nominee Sonia Sotomayor (see May 26, 2009) is a racist. Tancredo uses a statement from 2001 that seems to suggest Sotomayor believes Latinas (Hispanic women) make better rulings than white males (see October 26, 2001) to launch his attack. “I’m telling you she appears to be a racist,” Tancredo says. “She said things that are racist in any other context. That’s exactly how we would portray it and there’s no one who would get on the Supreme Court saying a thing like that except for a Hispanic woman and you’re going to say it doesn’t matter. Well, man. Where are you coming from? How can you possibly say that? There’s plenty of stuff.” Another guest, liberal columnist Bill Press, says that Sotomayor will get no “special protection” because of her race and gender, to which Tancredo scoffs, “Oh, jeez.” Responding to Press’s reiteration of Sotomayor’s extensive judicial background, Tancredo says: “You can still be a racist and have all of those things in your background. You can be a racist and have all of that stuff in your background. One does not preclude the other.” Schultz asks his third guest, reporter Mike Allen, if he would “check out to see if she had some racist comments?” Allen responds, “No,” to which Tancredo says: “You won’t do it? You won’t check it out? There you go.… They won’t even check it out.” Tancredo also calls Sotomayor a “radical” and in the same sentence admits he knows nothing of her judicial record. Allen says of Tancredo’s remarks, “Ed, we’re getting a preview here of a lot of phony outrage, theatrics, posturing.” [MSNBC, 5/26/2009]
Fox News pundit Sean Hannity attacks the character of Supreme Court nominee Sonia Sotomayor (see May 26, 2009), using carefully selected quotes from former colleagues who remain anonymous. Hannity tells his listeners: “[W]hat do the lawyers who have appeared in her courtroom think of her judicial temperament? Well, not much. The Almanac of the Federal Judiciary solicits commentary from practicing attorneys about our federal judges. Now here’s what some lawyers who have argued before Judge Sotomayor had to say about her. Quote, ‘She is a terror on the bench. She is overly aggressive, not very judicial. She behaves in an out-of-control manner. She is nasty to lawyers.’” Hannity does not tell his listeners of some of the other comments about Sotomayor in the Almanac: “very smart,” “very intelligent,” “stern,” “an exceptional judge overall,” and “has a very good commonsense approach to the law.” One commentator wrote: “She can be tough as nails, but, in truth, I think some lawyers give her a hard time or are threatened by her. She’s very accomplished and clearly smart, and, in truth, I think they’re intimidated. She has always been decent enough to me.” Another wrote: “She’s very smart and well prepared, and she expects lawyers to rise to her level. She has very little tolerance for lawyers who can’t match her intellectually.” [Think Progress, 5/28/2009]
Former House Speaker Newt Gingrich (R-GA) says that because Supreme Court nominee Sonia Sotomayor (see May 26, 2009) is what he calls a “Latina woman racist,” she should immediately withdraw her nomination. Gingrich bases his remark on a 2001 comment by Sotomayor in which she said she “hopes that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life” (see October 26, 2001). Sending a text message on Twitter, Gingrich writes: “Imagine a judicial nominee said, ‘My experience as a white man makes me better than a Latina woman.’ New racism is no better than old racism.” He follows with another message: “White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw.” Republican National Committee (RNC) media chairman Todd Herman quickly “retweets” Gingrich’s message, which usually signifies agreement with the message, but the RNC will refuse to say whether or not it officially endorses Gingrich’s comment. White House press secretary Robert Gibbs replies that Gingrich is probably not the best source of information or guidance on the issue, and warns against excessive rhetoric: “I think it is probably important for any involved in this debate to be exceedingly careful with the way in which they’ve decided to describe different aspects of the impending confirmation. I think we’re satisfied that when the people of America and the people of the Senate get a chance to look at more than just the blog of a former lawmaker that they’ll come to the same conclusion that the president did.” [Think Progress, 5/27/2009; Plum Line, 5/27/2009; Washington Times, 5/28/2009] Orrin Hatch (R-UT), who sits on the Senate Judiciary Committee, refuses to align himself with Gingrich’s characterization. Asked about Gingrich’s remark, Hatch says, “No, I don’t agree with that.” [Think Progress, 5/27/2009] Days later, Gingrich will appear to withdraw the “racist” characterization, although he will go on to accuse Sotomayor of “betray[ing]” the “American system” of law (see June 3, 2009).
Salon columnist Glenn Greenwald notes that in 2006, conservative Supreme Court nominee Samuel Alito (see October 31, 2005 - February 1, 2006) made remarks about his ethnic identity influencing his decisions from the bench that are strikingly similar to those made in 2001 by Supreme Court nominee Sonia Sotomayor (see October 26, 2001 and May 26, 2009). Sotomayor is being called a “racist” by conservatives based on her remarks (see May 26, 2009, May 26, 2009, May 27, 2009, and May 28, 2009). In 2006, as Greenwald notes, Alito told the Senate Judiciary Committee: “[W]hen a case comes before me involving, let’s say, someone who is an immigrant—and we get an awful lot of immigration cases and naturalization cases—I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position. And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself, and I do say to myself, ‘You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.‘… When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.” Greenwald writes, “Anyone who is objecting now to Sotomayor’s alleged ‘empathy’ problem but who supported Sam Alito and never objected to this sort of thing ought to have their motives questioned (and the same is true for someone who claims that a person who overcame great odds to graduate at the top of their class at Princeton, graduate Yale Law School, and then spent time as a prosecutor, corporate lawyer, district court judge, and appellate court judge must have been chosen due to ‘identity politics’).” [Washington Post, 1/11/2006; Salon, 5/27/2009]
National Review columnist Mark Krikorian complains that Supreme Court nominee Sonia Sotomayor (see May 26, 2009) should not insist on her name being pronounced properly—with the emphasis on the last syllable. “Putting the emphasis on the final syllable of Sotomayor is unnatural in English,” he writes, “and insisting on an unnatural pronunciation is something we shouldn’t be giving in to.” Krikorian continues: “This may seem like carping, but it’s not. Part of our success in assimilation has been to leave whole areas of culture up to the individual, so that newcomers have whatever cuisine or religion or so on they want, limiting the demand for conformity to a smaller field than most other places would. But one of the areas where conformity is appropriate is how your new countrymen say your name, since that’s not something the rest of us can just ignore, unlike what church you go to or what you eat for lunch. And there are basically two options—the newcomer adapts to us, or we adapt to him. And multiculturalism means there’s a lot more of the latter going on than there should be.” [National Review, 5/27/2009] Two days later, MSNBC host Keith Olbermann derides Krikorian’s argument, noting: “I don’t know when your ancestors arrived in this country, Mr. Krikorian, but there was a time in which immigrants with tough-to-pronounce names were encouraged to change them, or sometimes had them changed for them at Ellis Island and elsewhere. Unless Sitting Bull is one of your ancestors, they either got here afterwards, or, like mine, they resisted this racist wall-papering pap that you are now spouting. If they hadn’t, today, your name, by your own logic, would be Mark Krik.” [MSNBC, 5/29/2009]
National Review columnist Mark Krikorian complains that Supreme Court nominee Sonia Sotomayor (see May 26, 2009) should not insist on her name being pronounced properly—with the emphasis on the last syllable. “Putting the emphasis on the final syllable of Sotomayor is unnatural in English,” he writes, “and insisting on an unnatural pronunciation is something we shouldn’t be giving in to.” Krikorian continues: “This may seem like carping, but it’s not. Part of our success in assimilation has been to leave whole areas of culture up to the individual, so that newcomers have whatever cuisine or religion or so on they want, limiting the demand for conformity to a smaller field than most other places would. But one of the areas where conformity is appropriate is how your new countrymen say your name, since that’s not something the rest of us can just ignore, unlike what church you go to or what you eat for lunch. And there are basically two options—the newcomer adapts to us or we adapt to him. And multiculturalism means there’s a lot more of the latter going on than there should be.” [National Review, 5/27/2009] Two days later, MSNBC host Keith Olbermann derides Krikorian’s argument, noting: “I don’t know when your ancestors arrived in this country, Mr. Krikorian, but there was a time in which immigrants with tough-to-pronounce names were encouraged to change them, or sometimes had them changed for them at Ellis Island and elsewhere. Unless Sitting Bull is one of your ancestors, they either got here afterwards, or, like mine, they resisted this racist wall papering pap that you are now spouting. If they hadn’t, today, your name, by your own logic, would be Mark Krik.” [MSNBC, 5/29/2009]
Fox News host Glenn Beck, speaking on his morning radio show, tells listeners that the nomination of Sonia Sotomayor to the Supreme Court (see May 26, 2009) is more evidence of a Marxist “hostile takeover” of the United States. The conflict between Republicans and Democrats over the nomination is nothing more than a “game,” Beck says. “Marxism,” he says. “It is Marxism. She is a Marxist.” As proof, he notes that Sotomayor quoted Socialist philosopher Norman Thomas in her yearbook at Princeton (he does not cite the quote: “I am not a champion of lost causes, but of causes not yet won”), a “socialist… whose quote leads her life.… It has influenced her.” He concludes by asking: “How many Marxists do we have to turn up before we say our country is being taken over? This is a hostile takeover.” [Politico, 5/27/2009; Media Matters, 5/28/2009]
Right-wing radio host and convicted felon G. Gordon Liddy (see January 30, 1973) denigrates Supreme Court nominee Sonia Sotomayor (see May 26, 2009)‘s race and gender in comments on his show. Liddy refers to the Spanish language as “illegal alien,” and speculates that Sotomayor’s rulings may be influenced by her menstrual cycle. Liddy says: “I understand that they found out today that Miss Sotomayor is a member of La Raza, which means in illegal alien, ‘the race’ (see May 28, 2009). And that should not surprise anyone because she’s already on record with a number of racist comments.… Let’s hope that the key conferences aren’t when she’s menstruating or something, or just before she’s going to menstruate. That would really be bad. Lord knows what we would get then.” After making these attacks, Liddy then states his belief that the Supreme Court should not represent a diversity of Americans: “And everybody is cheering because Hispanics and females have been, quote, underrepresented, unquote. [T]he Supreme Court is not designed to be and should not be a representative body.” [Think Progress, 5/29/2009]
Pat Buchanan on MSNBC. [Source: Vosizneias (.com)]Conservative pundit Pat Buchanan calls Supreme Court nominee Sonia Sotomayor (see May 26, 2009) an “affirmative action candidate” for the Court. “I don’t say it’s an outrage, I say it’s affirmative action,” Buchanan says. “They were picked because she’s a woman and a Hispanic and you know it as well as I do.” His sole evidence for his claim is the fact that President Obama apparently had no males on his short list of potential nominees. When host Norah O’Donnell points out that in past nominations the list of nominees had been exclusively white males, and perhaps “there weren’t any white men who were qualified” this time around, Buchanan calls her a bigot. When guest Lawrence O’Donnell, a former Democratic Senate staffer (and no relation to the host), asks if he would have raised similar objections if the list had contained no women, Buchanan refuses to answer. Think Progress correspondent Amanda Terkel notes that Buchanan has, in the past, avowed that slavery was good for African-Americans, wished for an America that was 90 percent white, and accused Hispanics of not wanting to “assimilate.” Lawrence O’Donnell says of Buchanan’s argument: “It’s like watching a dead fish flop around on the deck. You’re dead on this one, Pat. It’s all over.” [Think Progress, 5/27/2009] The next day, Weekly Standard editor Fred Barnes follows Buchanan’s lead, saying that Sotomayor is “one of those who has benefited from affirmative action over the years tremendously.” Radio host William Bennett, featuring Barnes as his guest, replies, “Did she get into Princeton on affirmative action, one wonders,” to which Barnes repeats, “One wonders.” [Think Progress, 5/28/2009]
Former White House political director Karl Rove continues his attacks on Supreme Court nominee Sonia Sotomayor (see May 26, 2009). In a column for the Wall Street Journal, Rove echoes former Justice Department official John Yoo in claiming that the Obama administration chose “empathy” over capability in Sotomayor’s selection (see May 26, 2009). Rove goes one step further than Yoo in equating Sotomayor’s “empathy” with “liberal judicial activism.” “‘Empathy’ is the latest code word for liberal activism,” Rove writes, “for treating the Constitution as malleable clay to be kneaded and molded in whatever form justices want. It represents an expansive view of the judiciary in which courts create policy that couldn’t pass the legislative branch or, if it did, would generate voter backlash.” He accuses Sotomayor, and indirectly President Obama, of a “readiness to discard the rule of law whenever emotion moves them.” He also accuses Obama of attempting to “placate Hispanic groups who’d complained of his failure to appoint more high profile Latinos to his administration.… Mr. Obama also hopes to score political points as GOP senators oppose a Latina. Being able to jam opponents is a favorite Chicago political pastime.” Rove advises Republicans to use Sotomayor’s nomination as an opportunity to “stress their support for judges who strictly interpret the Constitution and apply the law as written.” He notes: “A majority of the public is with the GOP on opposing liberal activist judges. There is something in our political DNA that wants impartial umpires who apply the rules, regardless of who thereby wins or loses.” [Wall Street Journal, 5/28/2009] Hours after his attack column is printed, Rove tells a Fox News audience that Republicans need to treat Sotomayor with “respect” and criticize her over her “philosophy,” not her background. [Think Progress, 5/29/2009]
National Council of La Raza logo. [Source: National Council of La Raza]Former House member Tom Tancredo (R-CO—see September 9, 2006) continues his attacks on Supreme Court nominee Sonia Sotomayor (see May 26, 2009). As in his earlier commentary, Tancredo vilifies Sotomayor over her supposed racism. On CNN, Tancredo says that her affiliation with the National Council of La Raza (NCLR), a Hispanic civil rights group, is the equivalent of a white person belonging to the Ku Klux Klan. “If you belong to an organization called La Raza, in this case, which is, from my point of view anyway, nothing more than a Latino—it’s a counterpart—a Latino KKK without the hoods or the nooses,” he says. “If you belong to something like that in a way that’s going to convince me and a lot of other people that it’s got nothing to do with race. Even though the logo of La Raza is ‘All for the race. Nothing for the rest.’ What does that tell you?” When host Rick Sanchez attempts to redirect Tancredo from his statements about the civil rights group, Tancredo shouts: “She’s a member! She’s a member of La Raza!” [Think Progress, 5/28/2009; NewsMax, 5/28/2009] Liberal news website Think Progress notes that La Raza has been targeted by conservative critics since the 2006 immigration rallies, with some making the false claim that La Raza advocates the secession of the Western United States “as a Hispanic-only homeland,” and right-wing blogs calling the organization “an anti-white extremist group.” In reality, La Raza is the nation’s largest Latino civil rights and advocacy group, focusing primarily on “civil rights/immigration, education, employment and economic status, and health.” The name “La Raza” translates to “the people,” not “the race,” as Tancredo insists. And the group’s motto is not “All for the race, nothing for the rest,” as Tancredo says, it is actually “Strengthening America by promoting the advancement of Latino families.” La Raza, or NCLR as it is officially known, points to its recognition by the Office of the Surgeon General and the Leadership Council for Civil Rights for its efforts on behalf of underprivileged Hispanic-Americans, and its work alongside Habitat for Humanity and the Heritage Foundation as a nonprofit organization working for positive social change. [National Council of La Raza, 2009; Think Progress, 5/28/2009]
John Cornyn (R-TX), a member of the Senate Judiciary Committee, says he is “troubled” by Supreme Court nominee Sonia Sotomayor (see May 26, 2009) in light of her supposed “judicial activism” (see May 26, 2009) and supposed willingness to put her personal background above her dedication to the rule of law (see October 26, 2001). However, Cornyn repudiates some of the more vicious attacks on Sotomayor from former House Speaker Newt Gingrich, former House Republican Tom Tancredo, radio talk show host Rush Limbaugh, and others who have termed her “racist” (see May 26, 2009, May 26, 2009, May 27-29, 2009, May 27, 2009, May 28, 2009, May 28, 2009, and May 28, 2009). “I think it’s terrible. This is not the kind of tone that any of us want to set when it comes to performing our constitutional responsibilities of advice and consent,” Cornyn says. Of Gingrich and Limbaugh, Cornyn adds: “Neither one of these men are elected Republican officials. I just don’t think it’s appropriate and I certainly don’t endorse it. I think it’s wrong.” [National Public Radio, 5/28/2009; Politico, 5/28/2009] The next day, Jeff Sessions (R-AL), the ranking Republican on the committee, says the inflammatory rhetoric from right-wingers such as Limbaugh, Tancredo, and Gingrich makes him “uneasy,” and he advises Republicans to limit their criticisms of Sotomayor to her judicial record. “I don’t think that’s good rhetoric,” says Sessions. “The question is, has the judge gone too far or not, given the established law of the land?” The Washington Post notes that in 1986, Sessions was denied a federal judgeship because of his record of racial insensitivity (see June 5, 2009). Neither Sessions nor the Post mentions Sessions’s recent attack on Sotomayor (see May 26, 2009). [Washington Post, 5/29/2009] On May 31, Sessions tells an NBC audience that his Republican colleagues should refrain from calling Sotomayor a racist, and he would prefer that they not continue to attack her over her 2001 remarks. [Associated Press, 5/31/2009]
David Duke. [Source: Hip Hop Republican (.com)]Conservative radio host Rush Limbaugh, continuing the attacks on Supreme Court nominee Sonia Sotomayor (see May 26, 2009), says that Sotomayor “brings a form of bigotry and racism to the court” similar to views espoused by former Ku Klux Klan leader David Duke. Within hours, Duke counters on his own Web site, disparaging Limbaugh’s comparison and claiming that while he believes Sotomayor is a racist, he himself has never embraced racist views. “Limbaugh, a recent addict to illegal drugs, has no business making personal attacks against me for my past,” Duke writes. “I have consistently supported true equal rights, stating again and again that I support the best-qualified person regardless of race in hiring and promotions.” Duke goes on to write that Sotomayor’s racism is “proven” by remarks she made during a 2001 speech in which she said a “wise Latina” judge would often make better decisions than a white male (see October 26, 2001), and calls her “an activist for radical-Left Mexican organizations and an enthusiastic proponent of racial discrimination against White people called affirmative action” (see May 28, 2009). He then claims that her nomination is part of an overarching Jewish conspiracy to control “any person who is influential or who may at some point in the future become influential.” [Think Progress, 6/1/2009]
Republican National Committee chairman Michael Steele, guest-hosting William Bennett’s radio show, says that Republicans should not attack Supreme Court nominee Sonia Sotomayor (see May 26, 2009) over her race (see May 26, 2009, May 26, 2009, May 27, 2009, May 28, 2009, May 28, 2009, and May 28, 2009). Doing so risks damaging the Republican Party’s image, he says. Steele, who is an African-American, warns that the “liberal media,” and particularly MSNBC, will use the racially motivated attacks to paint Republicans as bigots. “MSNBC will rip everything we have to say up into shreds,” he says. “I’m excited that a Hispanic woman is in this position,” he says. Republicans should stop “slammin’ and rammin’” on Sotomayor, and instead “acknowledge” the “historic aspect” of the pick and make a “cogent, articulate argument” against her for purely substantive reasons. Steele says the party doesn’t want to “get painted as a party that’s against the first Hispanic woman” picked for the Supreme Court. Democrats have made similar attacks on conservative candidates in the past, Steele avers, and says that the “liberal media” gave Democrats an unfair advantage in such controversies. Steele does not mention two of the loudest voices in the racially-based attacks against Sotomayor, former House Speaker Newt Gingrich and conservative radio host Rush Limbaugh. Washington Post columnist Greg Sargent writes: “It’s a reminder of Steele’s predicament: He knows how badly these attacks are damaging the party and how neatly they play into the hands of Dems, but he can’t call out the leading figures launching those attacks, because that risks infuriating the base and feeding the meme that the GOP is hopelessly divided.” [Plum Line, 5/29/2009] Two weeks before, while hosting Bennett’s show, Steele had attacked Sotomayor’s intellect and personality, calling her “not a bell ringer” and “abrasive.” [Think Progress, 5/29/2009] A week later, while hosting Bennett’s show, Steele will say, “God help you if you’re a white male coming before her bench” (see June 5, 2009).
Neoconservative columnist Charles Krauthammer advises fellow Republicans not to use racial or gender-based attacks against Supreme Court nominee Sonia Sotomayor (see May 26, 2009). Noting that barring an unforeseen incident, she will be confirmed to the high court, Krauthammer writes: “What should a principled conservative do? Use the upcoming hearings not to deny her the seat, but to illuminate her views. No magazine gossip from anonymous court clerks (see May 4, 2009). No ‘temperament’ insinuations (see May 27, 2009). Nothing ad hominem (see May 26, 2009, May 26, 2009, May 27-29, 2009, May 27, 2009, May 28, 2009, May 28, 2009, May 28, 2009. May 29, 2009, June 2, 2009, and June 3, 2009). The argument should be elevated, respectful, and entirely about judicial philosophy.” The debate should focus “on her statements about the inherent differences between groups, and the superior wisdom she believes her Latina physiology, culture, and background grant her over a white male judge (see October 26, 2001). They perfectly reflect the Democrats’ enthrallment with identity politics, which assigns free citizens to ethnic and racial groups possessing a hierarchy of wisdom and entitled to a hierarchy of claims upon society.… Vote Democratic and you get mainstream liberalism: a judicially mandated racial spoils system and a jurisprudence of empathy that hinges on which litigant is less ‘advantaged.’” [Washington Post, 5/29/2009]
President Barack Obama lambasts critics of Supreme Court nominee Sonia Sotomayor (see May 26, 2009) for their attacks on her (see May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 28, 2009, May 26, 2009, May 27-29, 2009, May 27, 2009, May 28, 2009, May 28, 2009, May 28, 2009, and May 29, 2009). Obama says that Sotomayor regrets her choice of words in a 2001 speech in which she said a “wise Latina” judge would often make better decisions than a white male (see October 26, 2001), but goes on to condemn “all this nonsense that is being spewed out” by critics who have accused her of racism and belonging to racist groups. Of her speech, Obama says: “I’m sure she would have restated it. But if you look in the entire sweep of the essay that she wrote, what’s clear is that she was simply saying that her life experiences will give her information about the struggles and hardships that people are going through. That will make her a good judge.” White House spokesman Robert Gibbs says of the racial accusations: “It’s sort of hard to completely quantify the outrage I think almost anybody would feel at the notion that you’re being compared to somebody who used to be a member of the Ku Klux Klan. It’s amazing.” Republican strategist John Ullyot, who worked on judicial nominations as a Congressional staffer, says that “any comments politically on race or gender are fraught with peril for Republicans.” He continues: “A few conservatives from outside of the Senate, in their zeal to pick a fight over Obama’s nominee, decided to get very ugly very quickly. No one in the Senate has followed along, and that’s the loudest condemnation you can have.” Ullyot fails to mention attacks from Republican Senators James Inhofe (R-OK) and Jeff Sessions (R-AL—see May 26, 2009). [Washington Post, 5/29/2009]
Tom Goldstein, the veteran lawyer who maintains the nonpartisan Supreme Court watchdog Web site “SCOTUSblog” (see May 26, 2009), completes an analysis of Supreme Court nominee Sonia Sotomayor’s (see May 26, 2009) rulings on race-related court cases. Sotomayor has come under intense fire for supposedly being a “racist” and allowing her “personal bias”—her Hispanic heritage—to influence her decisions from the bench (see May 26, 2009, May 26, 2009, May 27-29, 2009, May 27, 2009, May 28, 2009, May 28, 2009, and May 28, 2009). As a member of the Second Circuit Court of Appeals, Sotomayor has ruled on 96 race-related cases. One of those is still on appeal to the Supreme Court. Of those 96 cases, Sotomayor and the entire panel rejected the claim of discrimination 78 times, and agreed with the claim 10 times. The remaining eight involved other kinds of claims or dispositions. Of the 10 favorable rulings, nine of those were unanimous. Seven of those nine rulings involved at least one Republican-appointed judge. In the one divided ruling, the dissent involved a technical question of whether the criminal defendent had forfeited his right to challenge the jury selection in his case. Goldstein concludes: “So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.… [I]n sum, in an 11-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of four times.… Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.” [SCOTUSblog, 5/29/2009]
The conservative Judicial Confirmation Network releases a television and Internet advertisement that attacks Supreme Court nominee Sonia Sotomayor (see May 26, 2009) for being “personally biased” in her rulings. The ad, which claims Sotomayor’s ascension to the high court will place “equal justice… under attack,” is based largely on comments Sotomayor made in a 2001 speech (see October 26, 2001). [Think Progress, 5/29/2009] White House spokesman Robert Gibbs says that Sotomayor made a “poor word choice” in her 2001 comments (see May 29, 2009) [Associated Press, 5/29/2009] , but both President Obama and liberal news and analysis Web site Think Progress note that in that same 2001 speech, Sotomayor was firm in reiterating her belief that judges must base their decisions on the rule of law, not on personal bias or preference. And an analysis of her record shows that she has ruled against plaintiffs in discrimination lawsuits a large majority of the time (see May 29, 2009). [Think Progress, 5/29/2009] After the ad draws fire from across the political spectrum, Judicial Confirmation Network spokeswoman Wendy Long
(see May 26, 2009) backs away from the controversy, writing that the debate over Sotomayor “is turning into an argument about race and identity politics.” She adds, “Many of us in the conservative movement believe that Judge Sotomayor is intelligent, and that, at least on paper, she has professional qualifications that are certainly sufficient for occupying a seat on the US Supreme Court.” Long continues to call Sotomayor’s judicial philosophy “very troubling.” [MSNBC, 5/29/2009]
Right-wing pundit Pat Buchanan continues to attack Supreme Court nominee Sonia Sotomayor (see May 26, 2009), this time during an appearance on C-SPAN’s Washington Journal. Buchanan continues his allegations that Sotomayor is an “affirmative action nominee” (see May 28, 2009), and mocks her recent discussion of her difficulties with the English language: Sotomayor told a New York Times reporter that during her first years in college, she honed her English skills by reading children’s books, practiced with lower-level grammar books, and worked with a professor who provided her tutoring in the language. Buchanan says in reference to the article: “Well I, again in that Saturday piece, she went to Princeton. She graduated first in her class it said. But she herself said she read, basically classic children’s books to read and learn the language and she read basic English grammars and she got help from tutors. I think that, I mean if you’re, frankly if you’re in college and you’re working on Pinocchio or on the troll under the bridge, I don’t think that’s college work.” The article did not characterize her outside, self-directed remedial work with English as “college work.” Amanda Terkel, a reporter for left-leaning Think Progress, will note: “Buchanan has long claimed that Hispanic immigrants are resistant to learning English and has said that it would be easier for them to ‘assimilate’ if they did so.… So basically, Buchanan yells when Hispanics are allegedly unwilling to learn English. However, when they make an attempt to do so, he mocks them as being dumb.” [New York Times, 5/30/2009; Think Progress, 6/1/2009]
Former George H. W. Bush speechwriter Peggy Noonan joins the ranks of Republicans (see May 28-31, 2009, May 29, 2009, and May 29, 2009) asking for a more moderate and less inflammatory tone in recent criticisms of Supreme Court nominee Sonia Sotomayor (see May 26, 2009 and May 26, 2009). Republicans should “play grown-up,” she advises, in opposing the Sotomayor nomination, and notes that her background—disadvantaged, Hispanic, female—makes her dangerous to oppose too vehemently: “Politically she’s like a beautiful doll containing a canister of poison gas: Break her and you die.” Noonan continues: “New York is proud of her; I’m proud of our country and grateful at its insistence, in a time when some say the American dream is dead, that it most certainly is not. The dream is: You can come from any place or condition, any walk of life, and rise to the top, taking your people with you, in your heart and theirs. Maybe that’s what they mean by empathy: Where you come from enters you, and you bring it with you as you rise. But if that’s what they mean, then we’re all empathetic. We’re the most fluid society in human history, but no one ever leaves their zip code in America, we all take it with us. It’s part of our pride. And it’s not bad, it’s good.” Noonan calls Republicans who launch virulent attacks on her racial heritage or gender “idiots,” and writes that instead of “exciting the base,” as one Republican strategist has said the attacks will do, “How about excit[ing] a moderate, or interest[ing] an independent? How about gain[ing] the attention of people who aren’t already on your side? The base is plenty excited already, as you know if you’ve ever read a comment thread on a conservative blog.… They don’t need to be revved, they’re already revved. Newt Gingrich twitters that Judge Sotomayor is a racist (see May 27, 2009). Does anyone believe that? He should rest his dancing thumbs, stop trying to position himself as the choice and voice of the base in 2012, and think.… The choice for Republicans isn’t between ‘attack’ and ‘roll over.’ It’s broader than that, and more interesting. There’s a new and fresh opportunity here for Republicans in the Senate to be serious, and, in their seriousness, to be seen and understood in a new light.” [Wall Street Journal, 6/1/2009]
A doctored photo of Sotomayor issued by the Council of Conservative Citizens. The robe and hood have been added to the photo, as has the ‘raised-fist’ logo. [Source: Council of Conservative Citizens / Think Progress]The Council of Conservative Citizens (CofCC), a pro-segregation group that the Southern Poverty Law Center has called “brazenly racist,” posts a doctored photograph of Supreme Court nominee Sonia Sotomayor (see May 26, 2009) on its Web site. The altered photograph depicts Sotomayor wearing what appears to be a robe and hood similar to those worn by members of the Ku Klux Klan. The robe has a raised fist and the words “La Raza.” Sotomayor is a member of the National Council of La Raza (NCLR), a Hispanic civil rights organization which some conservatives have falsely claimed is a racist organization (see May 28, 2009 and May 29, 2009). An NCLR spokesman confirms that the logo in the photograph is not used on any basis by the organization. [Think Progress, 6/2/2009]
Gun rights advocates’ attempts to portray Supreme Court nominee Sonia Sotomayor (see May 26, 2009) as “anti-gun” hit a snag when a panel of conservative judges upholds her ruling in favor of restricting gun ownership. Sotomayor has been called an “anti-gun radical” by some activists for joining an opinion, cited in Maloney v. Cuomo, that found the Second Amendment does not prevent state and local governments from restricting arms ownership. That ruling, rejecting a challenge to Chicago’s tough gun laws, was unanimously upheld by the Seventh Circuit Court of Appeals, which is made up largely of conservative judges. The ruling could, according to the Washington Post, “complicate efforts to portray Sotomayor as a judicial activist trying to undermine the Supreme Court’s landmark decision last year holding that the amendment protects the right to own a gun for self-defense.” The Seventh Circuit’s opinion was written by chief judge Frank Easterbrook, described by the Post as “one of the nation’s leading conservative judges,” and joined by two Republican-appointed judges, including “conservative favorite Richard A. Posner.” Walter Dellinger, who argued a related case and supports Sotomayor’s nomination, says, “When two of the most highly regarded, conservative judges agree that courts of appeal should not reach out and make new law on this issue, it renders Judge Sotomayor’s opinion on this subject beyond criticism.” But some continue their opposition. David Kopel, a lawyer who has criticized Sotomayor’s stance on gun ownership, says the ruling will not change the views of gun activists that she is “anti-gun” and the Maloney opinion was intellectually “dishonest.” [Washington Post, 6/3/2009]
After meeting with Supreme Court nominee Sonia Sotomayor (see May 26, 2009), Senator Lindsey Graham (R-SC) says he has fundamental questions about her judicial philosophy and temperament, and adds he will likely not vote to confirm her to the high court. “I was very direct,” he tells reporters of his conversation with Sotomayor. “I have to decide how to play this game, quite frankly. If I use the same standard that Senator [Barack] Obama used, then I would not vote for you, quite frankly.” Graham is referring to votes cast by then-Senator Obama against Justices John Roberts (see September 29, 2005) and Samuel Alito (see October 31, 2005 - February 1, 2006) in which Graham asserts that Obama voted against them on ideological grounds. “He used a standard, I think, that makes it nearly impossible for a person from the opposite party to vote for the nominee,” Graham says. Many political observers feel that Graham is something of a bellwether of Republican sentiment; a former judge advocate general officer, Graham is considered one of the better legal minds in the party, and his opinion carries great weight with his colleagues. Other Republicans may follow his lead in coming out in public opposition to the nominee. Graham says he asked Sotomayor about her “wise Latina” comment (see October 26, 2001), but refuses to say how she responded. Graham also says he has questions about her temperament, saying that while she was friendly in the meeting, he cannot ignore other lawyers’ negative assessments of her personality (see May 4, 2009). “I think she does have the intellectual capacity to do the job,” Graham says. “But there’s a character problem. There’s a temperament problem that they—during the time they’ve had to be a judge, that they were more of an advocate than an impartial decider of the law. And I’ve got to find out, in my own mind” about her temperament. [Politico, 6/3/2009] On Fox News, Graham contradicts his earlier assessment, saying that Sotomayor has “sterling character.” [Think Progress, 6/3/2009]
Former House Speaker Newt Gingrich (R-GA) writes what appears to be a retraction or withdrawal of his previous accusations that Supreme Court nominee Sonia Sotomayor (see May 26, 2009) is a racist (see May 27, 2009). He writes that he was reacting to the news of remarks she made during a 2001 speech in which she said a “wise Latina” judge would often make better decisions than a white male (see October 26, 2001), and calls his “initial reaction… perhaps too strong and too direct.” Others have criticized his “word choice” in his vilification of Sotomayor, and Gingrich writes, “The word ‘racist’ should not have been applied to Judge Sotomayor as a person, even if her words themselves are unacceptable (a fact which both President Obama and his press secretary, Robert Gibbs, have since admitted)” (see May 29, 2009). Gingrich then launches an attack on Sotomayor’s “judicial impartiality” and accuses her of “a betrayal of a fundamental principle of the American system—that everyone is equal before the law.” Gingrich is either unaware of, or ignoring, a recent analysis which disproves the thesis that Sotomayor has systematically exhibited racial bias in her rulings (see May 29, 2009). He calls her a “radical liberal activist” masquerading as a “convention[al] liberal,” and lambasts Obama for believing that “judicial impartiality” is “no longer a quality we can and should demand from our Supreme Court justices.” [Think Progress, 4/3/2007; Human Events, 6/3/2009] Liberal news and analysis Web site Think Progress notes that Gingrich may not be the most impartial person to weigh in on this issue, having called Spanish “the language of living in the ghetto” and warned of “gay and secular fascism” as an imminent threat to American society. [Think Progress, 4/3/2007; Think Progress, 11/17/2008]
Republican lawmakers have moved to tone down the incendiary rhetoric surrounding the nomination of Sonia Sotomayor to the Supreme Court (see May 26, 2009). Senator Lindsey Graham (R-SC) says he is happy that former House Speaker Newt Gingrich (R-GA—see June 3, 2009) and others (see May 28-31, 2009, May 29, 2009, May 29, 2009, and June 1, 2009) are backing away from the accusations of racism and liberal activism that have marked conservative responses to Sotomayor’s nomination (see May 26, 2009). “I think she deserves to be challenged,” Graham says. “It is fair to make her address that question and prove it. It is not fair to say that she’s a racist.” Governor Tim Pawlenty (R-MN) says his fellow Republicans “shouldn’t jump to conclusions, particularly with, you know, overheated rhetoric.” Gingrich spokesman Rick Tyler says Gingrich made his own decision to tone down his rhetoric, and was not asked by other Republicans to do so. Gingrich hopes to “reset the argument,” Tyler says, but notes that “nothing has changed in the structure of his argument, he is just retracting the word racist.” Conservative radio host Rush Limbaugh says that the attacks on Sotomayor should continue, and says he doesn’t know why Gingrich is backing off. “I didn’t know why he had retracted it, and I still don’t,” he says. “I have my own theory about what Newt’s doing, but since I’m not doing it, I’m not going to comment.” Curt Levey of the conservative legal group Committee for Justice says: “The fact that the most extreme voices have softened I think is good. It’s good. We have to keep the debate civil. Republican senators should be keeping an open mind.… Calling her a racist was a racially insensitive remark. Frankly all we can do at this point is raise questions about her.” Levey has called Sotomayor an intellectual “lightweight” (see May 26, 2009). [Politico, 6/4/2009] Concurrently with the Republican lawmakers’ public statements towards moderating the attacks on Sotomayor, an aide to Senate Minority Leader Mitch McConnell (R-KY), Lanier Swann, advises conservative activists to keep up their pressure on Sotomayor. The aide gives the advice during a weekly meeting of influential conservative activists, radio hosts, and others hosted by veteran Washington activist Grover Norquist. “Swann told us she wanted to encourage all of us in our talking points and that we’re having traction among Republicans and unnerving Democrats,” says one attendee. “The point was we should keep it up. She told us at this meeting to put our foot on the pedal.” A second attendee confirms the account. A spokesman for McConnell says he is sure Swann did not call for further attacks. [The Hill, 6/3/2009]
Jeff Sessions (R-AL), the ranking Republican on the Senate Judiciary Committee, says he intends to be fair to Supreme Court nominee Sonia Sotomayor (see May 26, 2009) when she appears before the committee for confirmation to the bench. Sessions says he knows how it feels to be accused of racism (see May 26, 2009, May 26, 2009, May 27-29, 2009, May 27, 2009, May 28, 2009, May 28, 2009, May 28, 2009, May 29, 2009, June 2, 2009, June 3, 2009, and June 5, 2009) because he weathered such accusations when he was turned down for a federal judgeship in 1986. As a US attorney in Alabama, Sessions had demonstrably shown bias during his prosecution of civil rights activists for voting fraud, called the NAACP an “un-American” and “Communist” organization, called a black attorney “boy” and warned him to “be careful what you say to white folks,” and expressed his admiration for the Ku Klux Klan. None of those assertions were true, Sessions now says, claiming he was “caricatured,” even though at the time, multiple witnesses made the claims. Then, Sessions says, he couldn’t counter “the message” that he was a racist. While he does not directly repudiate the accusations of racism leveled against Sotomayor, he recently told her, “You will get a fair hearing before this committee.” [New Republic, 12/30/2002; CNN, 6/5/2009]
Republican National Committee chairman Michael Steele implies that Supreme Court nominee Sonia Sotomayor (see May 26, 2009) has racist tendencies, a week after urging fellow Republicans to stop “slammin’ and rammin’” Sotomayor over the issue of race and deal with her nomination on the issues (see May 29, 2009). While guest-hosting William Bennett’s radio show, Steele discusses criticisms that have been made of Sotomayor. “[T]he comments that she made that have been played up about, you know, the Latina woman being a better judge than the white male is something that she has said on numerous occasions,” Steele tells a caller (see October 26, 2001). “So this was not just the one and only time it was said. They’ve now found other evidences and other speeches… that she has made mention of this, this fact that her ethnicity, that her cultural background puts her in a different position as a judge to judge your case.… And God help you if you’re a white male coming before her bench.” A recent analysis of Sotomayor’s decisions as a judge in race-based cases proves that she does not discriminate against white plaintiffs (see May 29, 2009). [Think Progress, 6/5/2009] Four days later, Steele will defend his remarks. “Well, that’s not inflammatory,” he tells a CNN audience. “It’s based off of what—the inference that she left and what she said. You know, if you have a judge, where you have a situation where you have—you’re going before a trier of fact, and the trier of fact is on record as saying that this individual’s background experience is better positioned to make a decision than someone else, that gives one pause. And so my view of it was, in looking at it, you’re now segregating out white men by your comments. So, God help you if you’re a white male. If you’re seeking justice, this may not be the bench you want to go before.” [Think Progress, 6/10/2009]
A press investigation reveals that corporate interests are behind a supposedly grassroots effort to block Supreme Court nominee Sonia Sotomayor (see May 26, 2009) from ascending to the high court. Raw Story reporters Larisa Alexandrovna and Muriel Kane have learned that the Committee for Justice (CFJ), an organization they call “an astroturf group established by big business in July 2002 to create an appearance of popular support for President Bush’s judicial nominees,” is taking the lead in the effort to oppose the Sotomayor nomination. The head of the CFJ, Curt Levey, lambasted Sotomayor as an “intellectual lightweight” the day of her nomination (see May 26, 2009), and has made regular media appearances since then attacking her as racist and biased. CFJ was created in 2002 by Senator Trent Lott (R-MS), who recruited Washington lawyer C. Boyden Gray to “create a fake grassroots organization” to support conservative, pro-business jurists such as Charles Pickering and Chief Justice John Roberts. Gray, a former White House counsel, received the support of former President George H. W. Bush, Republican political adviser Karl Rove, and former Republican National Committee chairman Haley Barbour. Gray has a strong history of creating “astroturf” organizations, which are lobbying and activist groups supposedly founded and led by ordinary citizens but that in fact are created and funded by large political and corporate interests. CFJ is one of the most successful of these creations, and has often been successful in placing pro-business judges on the bench. CFJ and other astroturf organizations founded or assisted by Gray have been funded by, among other firms, Wal-Mart, Home Depot, insurance giant AIG, and the Ameriquest Capital Corporation, receiving over $100 million since 1998. CFJ’s board includes Stan Anderson, the legal advisor to the Chamber of Commerce; John Engler, the president of the National Association of Manufacturers; former Republican governor Frank Keating, now president of the American Council of Life Insurers; and former Republican Senator Connie Mack. [Raw Story, 6/5/2009]
Entity Tags: US Supreme Court, National Association of Manufacturers, Sonia Sotomayor, Stan Anderson, Trent Lott, US Chamber of Commerce, Muriel Kane, Wal-Mart, Larisa Alexandrovna, John Engler, AIG (American International Group, Inc.), Karl C. Rove, Committee for Justice, Charles Pickering, Clayland Boyden Gray, Connie Mack, Curt Levey, Frank Keating, John G. Roberts, Jr, Home Depot, Haley Barbour, George W. Bush, George Herbert Walker Bush, Ameriquest Capital Corporation, American Council of Life Insurers
Timeline Tags: Domestic Propaganda
Former House Speaker Newt Gingrich, who recently seemed to retract his characterization of Supreme Court nominee Sonia Sotomayor as a “racist” (see May 27, 2009 and June 3, 2009), now calls Sotomayor a “racialist.” On CBS News’s Face the Nation, Gingrich says: “When I did a Twitter about her, having read what she said, I said that was racist—but I applied it to her as a person. And the truth is I don’t know her as a person. It’s clear that what she said was racist, and it’s clear—or as somebody wrote recently, ‘racialist’ if you prefer.” [Think Progress, 6/7/2009]
Former First Lady Laura Bush says some positive things about Supreme Court nominee Sonia Sotomayor (see May 26, 2009). On ABC’s Good Morning America, Bush says: “I think she sounds like a very interesting and good nominee.… As a woman, I’m proud there might be another woman on the Court. So we’ll see what happens, but I wish her well.” [Think Progress, 6/8/2009] Bush’s comments stand in contrast to some conservatives’ gender-based attacks on Sotomayor (see May 26, 2009, May 28, 2009, and June 5, 2009).
After meeting one-on-one with Supreme Court nominee Sonia Sotomayor (see May 26, 2009), Senator Mel Martinez (R-FL) predicts that she will be confirmed “with pretty good numbers” and will “fit in” well on the Court. Martinez, like Sotomayor a Hispanic, says he is not concerned about her “wise Latina” comments from 2001 (see October 26, 2001). He knows of no evidence that shows she has ever let her heritage or personal feelings influence her judicial decisions (see May 29, 2009). “For someone who is of Latin background, personally, I understand what she is trying to say,” Martinez comments. “Which is, the richness of her experience forms who she is. It forms who I am.” [CNN, 6/9/2009]
Conservative author and pundit Pat Buchanan continues the argument that Supreme Court nominee Sonia Sotomayor (see May 26, 2009) is a product of “affirmative action” (see May 28, 2009, May 29, 2009, and May 31, 2009). “By her own admission, Sotomayor is an ‘affirmative action baby,’” Buchanan writes, referring to a panel discussion from the early 1990s where she called herself a “product of affirmative action.” Buchanan writes that her stellar academic record, including graduating at the top of her class at both Princeton and Yale, is “a fraud from beginning to end, a testament to Ivy League corruption.… Sotomayor got into Princeton, got her No. 1 ranking, was whisked into Yale Law School and made editor of the Yale Law Review—all because she was a Hispanic woman. And those two Ivy League institutions cheated more deserving students of what they had worked a lifetime to achieve, for reasons of race, gender, or ethnicity. This is bigotry pure and simple. To salve their consciences for past societal sins, the Ivy League is deep into discrimination again, this time with white males as victims rather than as beneficiaries. One prefers the old bigotry. At least it was honest, and not, as Abraham Lincoln observed, adulterated ‘with the base alloy of hypocrisy.’” [Human Events, 6/12/2009; Media Matters, 6/14/2009]
Former President George H. W. Bush condemns the right-wing attacks against Supreme Court nominee Sonia Sotomayor (see May 26, 2009), speaking out specifically against the charges that she has racist tendencies (see May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 28, 2009, May 26, 2009, May 27-29, 2009, May 27, 2009, May 28, 2009, May 28, 2009, May 28, 2009, May 29, 2009, May 29, 2009, June 2, 2009, June 5, 2009, and June 7, 2009). “I don’t know her that well but I think she’s had a distinguished record on the bench and she should be entitled to fair hearings,” he says. “Not—[it’s] like the senator John Cornyn said it (see May 28-31, 2009). He may vote for it, he may not. But he’s been backing away from these… backing off from those radical statements to describe her, to attribute things to her that may or may not be true.… And she was called by somebody a racist once. That’s not right. I mean that’s not fair. It doesn’t help the process. You’re out there name-calling. So let them decide who they want to vote for and get on with it.” [Think Progress, 6/12/2009]
English-only advocates Pat Buchanan and white nationalist Peter Brimelow standing under misspelled banner. [Source: Think Progress (.org)]Right-wing pundit Pat Buchanan and his organization The American Cause host a conference to discuss how Republicans can regain a political majority. The conference is co-sponsored by a number of white nationalist and white advocacy groups. The conference features a panel discussion supporting English-only initiatives as a way to attract “working-class white Democrats” to the Republican Party, and in the process ridicules Supreme Court nominee Sonia Sotomayor (see May 26, 2009) for her use of children’s books to study English while she was in college (see May 31, 2009). The panelists also suggest that, without English as the official language of the US, President Obama would force Americans to speak Spanish. The conference’s English-only advocates apparently do not notice that the banner hanging over the festivities prominently misspells the word “conference” as “conferenece.” [Media Matters, 6/11/2009; Think Progress, 6/22/2009]
The Supreme Court refuses to hear an appeal concerning former CIA official Valerie Plame Wilson’s dismissed lawsuit against four Bush officials (see July 19, 2007). Plame Wilson had sued former Vice President Dick Cheney (see July 7-8, 2003), former White House political strategist Karl Rove (see July 8, 2003 and 11:00 a.m. July 11, 2003), convicted perjurer Lewis Libby (see March 6, 2007), and former Deputy Secretary of State Richard Armitage (see June 13, 2003), for deliberately disclosing her covert CIA status to reporters. Plame Wilson and her co-plaintiff, husband Joseph Wilson, have said their case is about “abuse of power at the highest level of American government.” The dismissal of their lawsuit was upheld by a federal appeals court in 2008. [Fox News, 6/22/2009] In May, Solicitor General Elena Kagan urged the Court to deny the Wilsons’ appeal, saying that the lawsuit did not meet the criteria of the 1974 Privacy Act. The law, Kagan argued, barred federal employees from being sued; only their agencies could be sued. [Mother Jones, 6/22/2009]
In an 8-1 decision, the US Supreme Court refuses to rule against one of the main components of the 1965 Voting Rights Act (VRA—see August 6, 1965 and June 29, 1989). Many conservatives had seen the case as an opportunity for the Court conservatives to either drastically narrow or entirely gut the VRA, and were hopeful of that outcome in light of a recent Court decision narrowing the VRA’s effect on districting (see March 9, 2009). Instead, the Court chooses not to rule on the central tenet of the case of Northwest Austin Municipal Utility District No. 1 v. Holder, which is that the VRA is largely unconstitutional. The case was brought by a Texas utility district that claimed in arguments that the VRA was unconstitutional and unnecessary in a time when the nation has elected a black president. The plaintiff argued that districts and other governmental entities should be allowed to “bail out” from being covered by the VRA. [New York Times, 6/22/2009; New York Times, 6/22/2009] Many observers were concerned that the conservative wing of the Court would use the case to overturn large portions of the VRA, especially in earlier questioning, when Justice Anthony Kennedy said: “Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments in the other.… No one questions the validity, the urgency, the essentiality of the Voting Rights Act. The question is whether or not it should be continued with this differentiation between the states. And that is for Congress to show.” [New York Times, 4/29/2009] Chief Justice John Roberts, writing the majority opinion, says that the Court should avoid tackling large constitutional questions when it can. “We are now a very different nation” than the one that first passed the Voting Rights Act, he writes. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.” Roberts’s opinion says that “a broader reading” of the VRA’s bailout provision should be implemented. Moreover, he writes, the federal oversight of states and areas with a history of discrimination may have served its purpose and may need to be phased out, a position supported by the lone dissenter, Justice Clarence Thomas, who writes that the oversight provision of Section 5 of the VRA should be overturned entirely. It is possible that others will take advantage of the Court’s hesitation to file other “opt out” or “bailout” challenges to the VRA. Some legal experts found the basis of the case to be lacking. Ellen Katz, a law professor at the University of Michigan, calls the Court’s ruling “improbable,” and Richard Hasen of Loyola Law School says “virtually no lawyer” sees the Court’s interpretation as reasonable. NAACP lawyer Debo P. Adegbile says that regardless of questions surrounding the Court’s verdict, the ruling is one to celebrate: “This case was brought to tear the heart out of the Voting Rights Act, and today that effort failed.” [New York Times, 6/22/2009]
The US Supreme Court says it will schedule a hearing on the controversial “Citizens United” case, Citizens United v. Federal Election Commission (see March 15, 2009), for September 2009, in an unusual second presentation before the Court (see September 9, 2009). According to the justices, the lawyers for both Citizens United (CU) and the federal government should argue whether previous Court rulings upholding federal election law should be overturned based on First Amendment grounds. Both sides are asked to argue whether the Court should overrule the 1990 Austin decision (see March 27, 1990), which upheld restrictions on corporate spending on political campaigns, and/or the 2003 McConnell decision (see December 10, 2003), which upheld the bulk of the 2002 Bipartisan Campaign Reform Act (BCRA—see March 27, 2002). Law professor Nathaniel Persily says of the directive: “The Court is poised to reverse longstanding precedents concerning the rights of corporations to participate in politics. The only reason to ask for reargument on this is if they’re going to overturn Austin and McConnell.” The New York Times observes, “The Roberts court [referring to the Supreme Court under Chief Justice John Roberts] has struck down every campaign finance regulation to reach it, and it seems to have a majority prepared to do more.” Previous lower court rulings have found that CU’s attempt to air a film attacking presidential candidate Hillary Clinton (D-NY) was an attempt to engage in “electioneering,” and thus came under the restrictions of the McCain-Feingold campaign law (see March 27, 2002). The film was financed in part by donations from corporations and individuals whom CU has refused to identify. [United Press International, 6/29/2009; New York Times, 6/29/2009] CU previously attempted to have its case heard by the Court, but the Court sent the case back to a federal appeals court, which ruled in favor of the Federal Election Commission (FEC) and against CU (see March 24, 2008). Law professor Richard Hasen agrees with Persily and the Times that the decision to reargue the case a second time indicates that the Court’s conservative majority is prepared to overturn both Austin and McConnell, and allow essentially unlimited corporate spending in federal elections. Hasen writes that if the Court does indeed rule in favor of unlimited corporate spending, it will be in response to the fundraising advantage currently enjoyed by Democratic presidential candidate Barack Obama (D-IL) over his Republican counterpart, John McCain (R-AZ). [Slate, 6/29/2009] The decision will indeed overturn both Austin and McConnell, and gut most of the BCRA (see January 21, 2010).
Entity Tags: Hillary Clinton, Bipartisan Campaign Reform Act of 2002, Barack Obama, Federal Election Commission, US Supreme Court, New York Times, John G. Roberts, Jr, Richard L. Hasen, Nathaniel Persily, John McCain, Citizens United
Timeline Tags: Civil Liberties
Rachel Maddow and Pat Buchanan, during their discussion of Sonia Sotomayor’s nomination to the Supreme Court. [Source: MSNBC / Crooks and Liars]As the Senate readies to vote for or against Judge Sonia Sotomayor for the Supreme Court (see August 6, 2009), conservative commentator and author Pat Buchanan attempts to explain why he feels Sotomayor should not be confirmed.
Affirmative Action Accusation - Buchanan, interviewed by MSNBC’s progressive host Rachel Maddow, has accused Sotomayor of being an “affirmative action” selection for the bench (see May 28, 2009, May 31, 2009, June 12, 2009, and June 20, 2009) who uses her position to “discriminate against white males.” As evidence of his claim, he says: “I do believe she’s an affirmative action appointment by the president of the United States. He eliminated everyone but four women and then he picked the Hispanic.” Maddow asks him to define affirmative action, and Buchanan replies, “Affirmative action is to increase diversity by discriminating against white males.” After citing four court cases, he adds: “[A]ffirmative action is basically reverse discrimination against white males and it’s as wrong as discrimination against black females and Hispanics and others. And that’s why I oppose it.”
White People Built America, Buchanan Says - In her turn, Maddow asks, “Why do you think is that of the 110 Supreme Court justices we’ve had in this country, 108 of them have been white?” to which Buchanan responds: “Well, I think white men were 100 percent of the people that wrote the Constitution, 100 percent of the people that signed the Declaration of Independence, 100 percent of people who died at Gettysburg and Vicksburg. Probably close to 100 percent of the people who died at Normandy. This has been a country built basically by white folks in this country who are 90 percent of the entire nation—in 1960, when I was growing up, Rachel—and the other 10 percent were African-American who had been discriminated against. That’s why.” Maddow asks if he believes “there are 108 of 110 white Supreme Court justices because white people essentially deserve to have 99.5 percent of those positions? That there’s nothing—that doesn’t reflect any sort of barrier to those positions by people who aren’t white. You think that’s what they’ve—you think that’s just purely on the basis of what white people have deserved to get?”
Back to Affirmative Action - Buchanan shifts his argument and asserts that the Supreme Court should have the nine finest legal minds and scholars, regardless of race or gender. “But this one doesn’t have that. She was appointed because she’s a Latina, a Hispanic, and a woman.” Maddow counters with Sotomayor’s extensive experience, saying: “She is also the judicial nominee who has more judging experience than any judge has gone up in, say, in the past, I don’t know, what is it, 70 years? She has been an appellate court judge of some distinction for a lot longer than [Chief Justice John] Roberts was, [Justice Samuel] Alito was. I mean, it’s not like she was—she was picked out… she was like picked out of the minor leagues and brought up here, Pat.” Buchanan returns to his affirmative action argument, noting that Sotomayor agreed that she was granted admission to Princeton University because of the program. Buchanan goes farther, accusing her of receiving preferential treatment for all of her accomplishments, including her stint on the Yale Law Review and her appointment to the federal bench. Maddow, battling through Buchanan’s attempts to interrupt her, defends the affirmative action program, saying: “[W]hat our country needs is to be able to choose from the largest possible pool of talent in order to be able to pick the people who are going to have to function at the highest levels so that our country can compete and our country to do all the hard things we need do, I would hope that you would see that picking 108 out of 110 white justices… to the Supreme Court means that other people aren’t actually being appropriately considered. And the reason that you have affirmative action is that you recognize that the fact that people were discriminated against for hundreds of years in this country means that you sort of gained the system, unless you give other people a leg up.” She continues, “But, Pat, for you to argue that there’s no basis on which the United States benefits… from having Hispanics be among the people who we choose the best and brightest from defies belief.… The idea that you think we’ll best serve by only choosing among 99.9 percent white people.… [W]hen I look at the United States Supreme Court and I see 108 out of 110 white people, I see 108 out of 110 men. I’m—I don’t look at that and think, ‘God, white guys are naturally better at this type of work than other people who aren’t getting these jobs.’ I don’t think that way.… I want to hear you—I would love to hear your answer as to whether or not you think that is what explains it, too. Because, I think, what the more obvious explanation is, is that you have to be a white guy in order to get considered for these jobs and has been true since the dawn of time in this country.… That’s starting to break up now so that we can tap a bigger pool of talent. You should be happy about that for your country, Pat.” Buchanan counters that whites “are victims of this evil affirmative action policy which says in effect that everybody’s covered by the 14th Amendment and the civil rights laws unless you’re a white male and your parents and ancestors came from Europe. Then we can discriminate against you. That’s what I am against.”
Stirring 'Up Racial Animus' - Countering Buchanan’s accusations of reverse racism, Maddow says: “Pat, I couldn’t disagree with you more. I tribute—I credit you sticking to your gun. I think you’re absolutely wrong about this and I think that by advocating that the Republican Party try to stir up racial animus among white voters.… You’re dating yourself.” Buchanan says that the government should “defend the legitimate rights of white working-class folks who are the victims of discrimination, because that’s the right thing to do and because it’s the politically right thing to do.” Maddow concludes: “A lot of things divide us, Pat. Race is one of those. But there’s a lot of other ways in which we just gratify as a country, and for you to privilege race and say that what we really need to make sure we tap, politically, is white people’s racial grievances, you’re playing with fire and you’re dating yourself. You’re living in the 1950s, Pat.” [MSNBC, 7/17/2009]
The second round of arguments in the Citizens United v. Federal Election Commission case (see January 10-16, 2008, March 24, 2008, March 15, 2009, and June 29, 2009) is heard by the US Supreme Court. The first round of arguments, which unexpectedly focused on an unplanned examination of government censorship, ended in a 5-4 split, with the majority of conservative justices readying a decision to essentially gut the entire body of federal campaign finance law in the name of the First Amendment (see March 27, 1990, March 27, 2002, and December 10, 2003), but an angry dissent by Justice David Souter that accused Chief Justice John Roberts of failing to follow the procedures of the Court in rendering the opinion prompted Roberts to temporarily withdraw the opinion and offer a rare second argument (see May 14, 2012). Newly appointed Solicitor General Elena Kagan argues her first case before the Court. Citizens United, the plaintiff, is represented by former Bush administration Solicitor General Theodore Olson. Olson, a veteran of Court arguments, quickly discerns from the new round of “Questions Presented” that the Court is prepared to not only find in the plaintiff’s favor, but to use the case to render a broad verdict against campaign finance law as a whole. Olson argues cautiously, not wanting to extend the case farther than the Court may desire. The four minority liberal justices, knowing the case is lost, try their best in their questioning to raise awareness in the public once news reports of the arguments are made public. One of those justices, Ruth Bader Ginsburg, asks: “Mr. Olson, are you taking the position that there is no difference” between the First Amendment rights of a corporation and those of an individual? “A corporation, after all, is not endowed by its creator with inalienable rights. So is there any distinction that Congress could draw between corporations and natural human beings for purposes of campaign finance?” Olson replies, “What the Court has said in the First Amendment context… over and over again is that corporations are persons entitled to protection under the First Amendment” (see January 30, 1976, April 26, 1978, June 25, 2007, and June 26, 2008). Ginsburg follows up by asking, “Would that include today’s mega-corporations, where many of the investors may be foreign individuals or entities?” Olson replies, “The Court in the past has made no distinction based upon the nature of the entity that might own a share of a corporation.” Kagan then takes her turn, and begins: “Mr. Chief Justice, and may it please the Court, I have three very quick points to make about the government position. The first is that this issue has a long history. For over a hundred years, Congress has made a judgment that corporations must be subject to special rules when they participate in elections, and this Court has never questioned that judgment.” She begins to make her second point before Justice Antonin Scalia, one of the conservative majority, interrupts her. In 2012, author and reporter Jeffrey Toobin will write that Kagan almost certainly knows hers is a legal “suicide mission,” and can only hope that her arguments may sway the Court to narrow its decision and leave some of the existing body of campaign finance law intact. She tells Roberts later in the questioning period, “Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.” Justice John Paul Stevens, the most senior of the liberal minority, attempts to assist Kagan in making her argument, suggesting that the Court should content itself with a narrow ruling, perhaps creating an exception in the McCain-Feingold law (see March 27, 2002) for the plaintiff’s documentary (see January 10-16, 2008) or for “ads that are financed exclusively by individuals even though they are sponsored by a corporation.” Kagan agrees with Stevens’s proposal. Stevens then says: “Nobody has explained why that wouldn’t be a proper solution, not nearly as drastic. Why is that not the wisest narrow solution of the problem before us?” Kagan, with help from Ginsburg, undoes some of the damage done by Deputy Solicitor General Malcolm Stewart during the first argument, where he inadvertently gave the conservative justices the “censorship” argument by which they could justify a broader verdict. Ginsburg asks: “May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies? Last time, the answer was yes, Congress could, but it didn’t. Is that still the government’s answer?” Kagan replies: “The government’s answer has changed, Justice Ginsburg. We took the Court’s own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully.” Unlike Stewart, Kagan specifically says that the government cannot ban books. But the censorship argument remains. After the arguments, the justices render the same verdict: a 5-4 split favoring Citizens United. Roberts, Scalia, and Justices Samuel Alito, Anthony Kennedy, and Clarence Thomas vote in the majority, while Ginsburg, Stevens, and Justices Stephen Breyer and Sonia Sotomayor vote in the minority. The second round of questioning, with its much broader scope, gives Roberts and his conservative colleagues the justification they need to render a broad verdict that would gut existing campaign finance law (see January 21, 2010). [New Yorker, 5/21/2012]
Entity Tags: Elena Kagan, US Supreme Court, Citizens United, Antonin Scalia, Anthony Kennedy, Theodore (“Ted”) Olson, David Souter, Stephen Breyer, Samuel Alito, John G. Roberts, Jr, Jeffrey Toobin, Federal Election Commission, Sonia Sotomayor, John Paul Stevens, Ruth Bader Ginsburg, Malcolm Stewart, Clarence Thomas
Timeline Tags: Civil Liberties
Supreme Court Justice Clarence Thomas and his wife, political activist Virginia Thomas. [Source: Associated Press]In November 2009, Virginia “Ginni” Thomas, a former Republican campaign operative and the wife of Supreme Court Justice Clarence Thomas, establishes a new “tea party” organization she calls Liberty Central. (Some media sources claim that Liberty Central begins operations in January 2010.) She describes the group as intended to bridge the gap between the conservative Republican establishment and the anti-government tea party movement. “I am an ordinary citizen from Omaha, Nebraska, who just may have the chance to preserve liberty along with you and other people like you,” she says at a Conservative Political Action Conference (CPAC) discussion with tea party leaders in Washington. “I adore all the new citizen patriots who are rising up across this country. I have felt called to the front lines with you, with my fellow citizens, to preserve what made America great.” She also says she started the group because of her reaction to what she calls President Obama’s “hard-left agenda.” The group also intends to work to elect Republicans and defeat Democrats, and provide political strategies and “talking points” for conservative candidates. [Los Angeles Times, 3/14/2010; Commission, 7/1/2010; Politico, 7/6/2010; Politico, 2/4/2011] In May 2010, the organization officially declares itself open for business, launching a $27,000 Web site, and touting partnerships with a number of prominent conservative groups and the backing of prominent conservatives such as former Defense Secretary Donald Rumsfeld and Federalist Society executive Leonard Leo, whom Justice Thomas has called “my good friend.” [Politico, 7/6/2010]
Questions of Conflict of Interest, Ethics - Almost immediately, legal ethicists assert that Virginia Thomas’s role as the head of a partisan, openly political advocacy organization could taint her husband’s impartiality, especially in light of the Citizens United Court decision, in which her husband sided with the 5-4 majority (see January 21, 2010), that allows her group to accept donations and spend them without publicly disclosing information about them. The group could have benefited from the Court’s decision, and Justice Thomas’s decision could be seen as being influenced by his wife’s decision to start the group. Law school professor Lucas A. “Scot” Powe, a Court historian, says, “I think the American public expects the justices to be out of politics.” The expectations for spouses are not so clear, he adds, saying, “I really don’t know because we’ve never seen it.” Legal ethicist Stephen Gillers, another law professor, says, “We expect the justice to make decisions uninfluenced by the political or legal preferences of his or her spouse.” Moreover, the press learns that while the Court was deliberating the Citizens United case, Liberty Central received an anonymous $550,000 donation. Government watchdog organization Common Cause wrote a letter to the Justice Department asking if Justice Thomas should recuse himself from the case, and wrote that “the complete lack of transparency of Liberty Central’s finances makes it difficult to assess the full scope of the ethics issues raised by Ms. Thomas’s role in founding and leading the group.” (The media later learns that $500,000 of the anonymous $550,000 donation for the organization comes from Dallas real estate investor Harlan Crow, who also hosts a fundraising event for the organization at his home. Crow once gave Justice Thomas a $19,000 “Frederick Douglass Bible” as a gift, and donated $150,000 to build a new wing named for Justice Thomas on a Savannah, Georgia, library that he visited frequently in his youth.) Common Cause also notes that Justice Thomas had failed to report on his financial disclosure filings his wife’s income over the last 13 years, prompting him to file amendments to the filings that indicated the sources, but not the amounts, of his wife’s income. Justice Thomas refuses to recuse himself from the case.
Period of Success - Liberty Central flourishes for a brief time, with Virginia Thomas assembling a veteran staff and forging relationships with conservative donors, with most of whom she and her husband had long, close relationships. Carl Graham of the Montana Policy Institute, one of the over 30 state and national tea party groups that are listed as partners in Liberty Central’s affiliate network, says, “Her association with Justice Thomas clearly provides a level of credibility that others wouldn’t be able to have, just because of the beliefs that he has and the stands that he has on the different positions that align with our own.” Liberty Central’s connection with Justice Thomas, Graham says, “gets you to open the email, if nothing else, as opposed to some other one that you may not even open.” Liberty Central hires the services of CRC Public Relations, a prominent Washington communications firm that has garnered some $15 million in fees from a number of clients, including top Republican Party committees and the presidential campaigns or political committees of George W. Bush, Mitt Romney, and John McCain, among others. Matt Kibbe of FreedomWorks, a tea party lobbying organization also partnered with Liberty Central (see April 14, 2009 and April 15, 2009), says, “Ginni was able to raise the seed capital to have a real launch” because of her connections in small-government conservative circles. Kibbe says most people are unaware that she is the wife of a Supreme Court justice. Tea Party Patriots leader Jenny Beth Martin calls Thomas a “mentor” for many tea party organizations, and says she helps these organizations “to navigate some of the waters in DC.… She’s been kind of a mentor, and when we had questions about things that we were doing, we bounced a few of the ideas off of her and also off of a few other people in DC just to make sure that what we were doing made sense.” [Los Angeles Times, 3/14/2010; Politico, 7/6/2010; Politico, 2/4/2011]
Media Attention - In a June 2010 interview with Fox News host Sean Hannity, Thomas says she is sure “liberals” will “persecute” her just as she says they did when her husband was undergoing confirmation for the Supreme Court. “They’re after me now sometimes,” she says. “And so, we’re not going to be dissuaded. We are in the fight for our country’s life.” She and Hannity engage in a lively conversation about the “tyranny” of the Obama administration. She also promises to “watch for conflicts” between herself and her husband. In October 2010, the media reports that Virginia Thomas leaves a voice mail for former college professor Anita Hill, who accused her husband of sexual harassment during his confirmation hearings for the Court (see October 8, 1991, October 8-12, 1991, and October 11-12, 1991), demanding that Hill issue an apology to her husband. The voice mail says: “Good morning, Anita Hill, it’s Ginni Thomas. I just want to reach across the airwaves and the years and ask you to consider something. I would love you to consider an apology sometimes and some full explanation of why you did what you did with my husband. So give it some thought and certainly pray about this and come to understand why you did what you did. Okay, have a good day.” The attention from the voice mail prompts more negative media attention, and some donors begin distancing themselves from the organization. (Virginia Thomas later admits that her voice mail message for Hill was “probably a mistake,” though she will call the media’s response to it “laughable.” She will call the message “an olive branch” she extends to Hill. For her part, Hill says: “I don’t apologize. I have no intention of apologizing and I stand by my testimony in 1991.”) [Los Angeles Times, 3/14/2010; Fox News, 6/8/2010; Politico, 7/6/2010; Politico, 10/19/2010; Washington Post, 11/15/2010]
Thomas Steps Down, Group Merges with Another Organization - In November 2010, Virginia Thomas steps down from her leadership post at Liberty Central. The group then merges with another, similar group called the Patrick Henry Center for Individual Liberty, an organization founded by ex-CIA agent Gary Aldrich, who wrote a largely discredited book “exposing” the “secrets” of the Clinton administration. Sources later tell reporters that Virginia Thomas sells off Liberty Central because it cannot raise the funds needed to support its large staff and high overhead. According to CRC spokeswoman Caitlin Carroll, Thomas will “take a back seat so that Liberty Central can continue with its mission without any of the distractions. After discussing it with the board, Mrs. Thomas determined that it was best for the organization.” However, Sarah E. Field, general counsel of Liberty Central, disagrees, saying: “There are many opportunities being presented to Liberty Central, but there is no agreement at this time.… The sources of this story appear to be people without full understanding of the facts.” Keith Appell of CRC tells a reporter that the Washington Post’s Amy Gardner “breached confidentiality” by reporting her conversation with Carroll. Gardner responds, “Everything I attributed to Caitlin Carroll comes from an on-the-record conversation we had by telephone this morning.” Within hours, Thomas files incorporation papers for a new political lobbying and consulting firm, Liberty Consulting (see February 4, 2011). [Politico, 7/6/2010; Politico, 11/15/2010; Washington Post, 11/15/2010; Politico, 2/4/2011]
Entity Tags: Lucas A. (“Scot”) Powe, Liberty Central, US Department of Justice, Matt Kibbe, Leonard Leo, Obama administration, US Supreme Court, Sean Hannity, Virginia (“Ginni”) Thomas, Keith Appell, Stephen Gillers, Patrick Henry Center for Individual Liberty, Jenny Beth Martin, Sarah E. Field, Gary Aldrich, Barack Obama, Anita Hill, Amy Gardner, CRC Public Relations, Caitlin Carroll, Harlan Crow, Clarence Thomas, FreedomWorks, Carl Graham, Donald Rumsfeld, Common Cause, Conservative Political Action Conference
Timeline Tags: Domestic Propaganda
The Sunlight Foundation’s Ellen Miller posts a scathing criticism of the Supreme Court’s Citizen United decision (see January 21, 2010) on the Foundation’s blog. Miller writes that the implications of the decision “are breathtaking—opening the floodgates of political money such as we have never seen before. If you thought Congress was ‘for sale’ to the highest bidder, you ain’t seen nothing yet. Nothing less than a fundamental rethinking of our campaign finance laws is demanded as a result of today’s decision.” Miller writes that transparency in donations and funding is not “a panacea for the horrific consequences of today’s decision, it is critically important as the shredded system is rebuilt. Today’s decision underscores the necessity of creating comprehensive real-time disclosure for all election spending—across the board—from when and how often candidates, individuals, and PACs report their contributions and expenditures to those involved in independent expenditures, issue ads, or direct election advocacy.” Miller focuses on the portion of the majority opinion that claimed Internet-based disclosure is sufficient to keep the public informed about campaign finance practices. The opinion, written by Justice Anthony Kennedy, held: “With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests.… This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.… [M]odern technology makes disclosures rapid and informative.… A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today.” Miller agrees, but notes that “the disclosure system [Kennedy] describe[s] doesn’t yet exist. The current disclosure system is insufficiently ‘rapid and informative’ and does not make effective use of modern technology.” Miller predicts a “tidal wave of corporate campaign expenditures” that will not be exposed or held accountable by the current disclosure system. “The quarterly reporting system now in place is outdated and ineffective—ridiculous, in a word.” Miller concludes: “[T]his decision should trigger momentum toward ensuring that all election-related information is available online in real-time. Disclosure remains a crucial antiseptic to the corrupting influence of money in politics. We should ensure our system is as transparent as possible.” [Ellen Miller, 1/21/2010]
Ian Millhiser, a constitutional policy analyst and lawyer for the liberal Center for American Progress, writes of what he considers the disastrous effect that the Citizens United decision by the Supreme Court (see January 21, 2010) will have on American politics. Millhiser says the majority ruling in the Citizens United decision is plainly wrong, and that the case presented to the Court had nothing to do with the First Amendment right to free speech. “Prior to Citizens United, no law prohibited anyone from saying anything they wanted,” he writes. “Corporate CEOs and other wealthy individuals could spend their own massive salaries to run political ads on TV. People who are less rich than corporate CEOs could pool their money together via organizations. The only thing that wasn’t permitted before Citizens United is that the CEO of Bank of America could not tap into Bank of America’s massive, multi-billion dollar treasury to defeat” a candidate he or she does not support. The decision not only “provide[s] Fortune 500 companies with a massive megaphone to blast their political views to the masses,” but “it also empowers them to drown out any voices that disagree with them.” Millhiser notes that the Obama and McCain presidential campaigns spent a combined total of $1.1 billion in 2008, a record-breaking sum. However, he goes on to note that because of the Citizens United decision, corporate donors could easily spend 100 times that amount if they wanted. ”$1.1 billion is nothing, however, compared to the billions of dollars in tax subsidies given to the oil industry every year, or the $117 billion fee President Obama wants to impose on the Wall Street bankers who created the Great Recession. Indeed, with hundreds of billions of dollars of corporate profits at stake every time Congress begins a session, wealthy corporations would be foolish not to spend tens of billions of dollars every election cycle to make sure that their interests are protected. No one, including the candidates themselves, have the ability to compete with such giant expenditures.” Until Congress can rein in what Millhiser views as the excesses of the Citizens United decision, “many extremely well-moneyed corporations will still succeed in unleashing their treasuries on the electorate, and drowning out opposing voices.” [Think Progress, 1/21/2010]
Loyola Law School Professor Richard Hasen writes that the Supreme Court’s recent Citizens United ruling (see January 21, 2010) is a “bad day for American democracy.” The Court as headed by Chief Justice John Roberts is a conservative activist court, Hasen writes, determined to recraft “constitutional law in its image.” The Citizens United ruling opens up the American political system “to a money free-for-all.” Hasen originally thought the Court would make a narrow ruling in the Citizens United case, perhaps finding that the campaign finance law often referred to as McCain-Feingold (see March 27, 2002) does not apply to video-on-demand broadcasts. “That would be in line with some of the past decisions of the Roberts Court, when it had preferred to chip away at existing precedent rather than dramatically move the law rightward.” But during questioning, it became clear that the conservatives on the Court were ready to dismantle McCain-Feingold as opposed to merely chipping away at it. The Court struck down limitations on corporate spending entirely (see March 27, 1990) and much of the legal limitations on so-called “soft money” campaign funding (see December 10, 2003). Hasen says that the majority opinion written by Justice Anthony Kennedy equates funding limitations with censorship. Hasen writes: “There are many responses to Justice Kennedy’s reasoning. He wrongly assumes that corporations or unions can throw money at public officials without corrupting them. Could a candidate for judicial office, for example, be swayed to rule in favor of a contributor who donated $3 million to an independent campaign to get the candidate elected to the State Supreme Court? Justice Kennedy himself thought so in [a previous case]. And yet he runs away from that decision in today’s ruling. Justice Kennedy acknowledges that with the ‘soft money’ limits on political parties still in place, third-party groups (which tend to run more negative and irresponsible ads) will increase in strength relative to political parties. And that possibility raises the real chance Congress will repeal the ‘soft money’ limits, thereby increasing the risks of quid pro quo corruption.” Hasen believes that Kennedy is enshrining a fundamental principle of financial inequality—that wealthy individuals and corporations now have the legal right to unduly influence elections via their money. Money, Hasen writes, should not be equated with speech, as Kennedy has found. Instead of doing what the Court traditionally does, Hasen writes, and taking a narrow view of a constitutional issue as it has in a recent case (see June 22, 2009)—the time-honored principle of “constitutional avoidance”—this time the Court has gone to the extreme to transform the constitutional interpretation of electoral procedures. “[T]he Court went out of its way to overturn its own precedent, in violation of its usual rule of stare decisis, which calls for respecting past rulings for the good of reliable law-making. And it did so violating its usual rule, which it cited even yesterday, that it does not generally reach issues not raised in the initial petition to the Court. In short, the Court did not have to do what it did today.… This is a Court that has taken a giant leap toward deregulation of the electoral process.” [Slate, 1/21/2010]
OMB Watch, a nonprofit government accountability organization, issues a press release blasting the controversial Citizens United decision by the US Supreme Court (see January 21, 2010), which allows corporations and labor unions to spend unrestricted amounts of money in support of, or opposition to, federal candidates. OMB Watch calls itself “disappointed” in the decision, and writes that it “fears [the decision] will lead to moneyed interests drowning out the voices of citizens and smaller advocacy organizations.” OMB Watch contends that the decision was wrong in stating that corporations and unions were denied access to campaigns and the election process—denied free-speech protections—by previous campaign finance law. “[P]rior to today’s decision, corporations were not stripped from political speech entirely during campaigns,” the organization says. “Rather, corporations and unions could pay for federal election spending through political action committees. The ruling will certainly alter corporate and union spending on future elections. This decision will have a profound impact on the 2010 midterm elections and 2012 presidential election.” The release quotes Lateefah Williams, a nonprofit speech rights policy analyst at OMB Watch who specializes in nonprofit voter engagement issues, as saying: “It will allow corporate interests to significantly impact those races by funneling massive amounts of money to support or oppose candidates.… Our fear is that the voices of large portions of our citizenry and the charities that advocate on their behalf will be drowned out in the process.” OMB Watch calls on Congress and the White House to pass legislation that would curtail the effect of the decision. [Brian Gumm, 1/21/2010]
President Obama sharply criticizes the controversial Citizens United decision by the US Supreme Court (see January 21, 2010), which allows corporations and labor unions to spend unrestricted amounts of money in support of, or opposition to, federal candidates. Obama says: “With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies, and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington—while undermining the influence of average Americans who make small contributions to support their preferred candidates. That’s why I am instructing my administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.” [Palm Beach Post, 1/21/2010; Think Progress, 1/22/2010]
The New York Times calls today’s ruling in the Citizens United case (see January 21, 2010) “disastrous,” saying that “the Supreme Court has thrust politics back to the robber-baron era of the 19th century.” The Court has used the excuse of the First Amendment (see January 21, 2010) to “pave… the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.” The Times recommends that Congress should “act immediately to limit the damage of this radical decision, which strikes at the heart of democracy.” In essence, the Times writes, lobbyists for corporate, labor, and special interests now have the power to sway elections in the directions they prefer. And the ruling gives those same interests the power to intimidate and even coerce candidates. “If a member of Congress tries to stand up to a wealthy special interest,” the Times writes, “its lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.” The Times notes that since the inception of the nation, its founders have “warned about the dangers of corporate influence. The Constitution they wrote mentions many things and assigns them rights and protections—the people, militias, the press, religions. But it does not mention corporations.” Corporate money has been banned from elections since 1907 (see 1907), and that ban has been in place, in one form or another (see June 25, 1910, 1925, 1935, 1940, June 25, 1943, June 23, 1947, March 11, 1957, February 7, 1972, 1974, May 11, 1976, January 30, 1976, January 8, 1980, March 27, 1990, March 27, 2002, and December 10, 2003), until today. The Times accuses the Court of “overreach[ing],” using “a case involving a narrower, technical question involving the broadcast of a movie that attacked Hillary Clinton during the 2008 campaign (see January 10-16, 2008). The Court elevated that case to a forum for striking down the entire ban on corporate spending and then rushed the process of hearing the case at breakneck speed. It gave lawyers a month to prepare briefs on an issue of enormous complexity (see June 29, 2009), and it scheduled arguments during its vacation” (see September 9, 2009). The Times says the ruling is “deeply wrong on the law,” particularly in declaring corporations as equivalent to people, with the same First Amendment rights. “It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that. It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans have to speak out in support of a candidate.” And the Times derides the statement in the Court’s majority opinion that says independent corporate expenditures “do not give rise to corruption or the appearance of corruption,” citing Senator John McCain (R-AZ)‘s characterization of the Court’s reasoning as being plagued by “extreme naivete.” The Citizens United case is, the Times writes, “likely to be viewed as a shameful bookend to Bush v. Gore (see 9:54 p.m. December 12, 2000). With one 5-to-4 decision, the Court’s conservative majority stopped valid votes from being counted to ensure the election of a conservative president. Now a similar conservative majority has distorted the political system to ensure that Republican candidates will be at an enormous advantage in future elections.” The only two ways to rectify the situation, the Times concludes, are to overturn the ruling via Congressional legislation and have a future Court—with a different makeup—overturn the decision itself. [New York Times, 1/21/2010]
Three of the Supreme Court justices in the majority decision: Antonin Scalia, John Roberts, and Anthony Kennedy. [Source: Associated Press / Politico]The Supreme Court rules 5-4 that corporate spending in political elections may not be banned by the federal government. The case is Citizens United v. Federal Election Commission, No. 08-205. The Court is divided among ideological lines, with the five conservatives voting against the four moderates and liberals on the bench. The decision overrules two precedents about the First Amendment rights of corporations, and rules that corporate financial support for a party or candidate qualifies as “freedom of speech” (see March 11, 1957, January 30, 1976, May 11, 1976, April 26, 1978, January 8, 1980, November 28, 1984, December 15, 1986, June 26, 1996, June 25, 2007, and June 26, 2008). The majority rules that the government may not regulate “political speech,” while the dissenters hold that allowing corporate money to, in the New York Times’s words, “flood the political marketplace,” would corrupt the democratic process. The ramifications of the decision will be vast, say election specialists. [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 ; New York Times, 1/21/2010] In essence, the ruling overturns much of the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain-Feingold law (BCRA—see March 27, 2002). The ruling leaves the 1907 ban on direct corporate contributions to federal candidates and national party committees intact (see 1907). The ban on corporate and union donors coordinating their efforts directly with political parties or candidates’ campaigns remains in place; they must maintain “independence.” Any corporation spending more than $10,000 a year on electioneering efforts must publicly disclose the names of individual contributors. And the ruling retains some disclosure and disclaimer requirements, particularly for ads airing within 30 days of a primary or 60 days of a general election. The Los Angeles Times writes: “The decision is probably the most sweeping and consequential handed down under Chief Justice John G. Roberts Jr. And the outcome may well have an immediate impact on this year’s mid-term elections to Congress.” [Los Angeles Times, 1/21/2010; OMB Watch, 1/27/2010; Christian Science Monitor, 2/2/2010; National Public Radio, 2012]
Unregulated Money Impacts Midterm Elections - The decision’s effects will be felt first on a national level in the 2010 midterm elections, when unregulated corporate spending will funnel millions of dollars from corporate donors into Congressional and other races. President Obama calls the decision “a major victory for big oil, Wall Street banks, health insurance companies, and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” Evan Tracey of the Campaign Media Analysis Group, which tracks political advertising, says the Court “took what had been a revolving door and took the door away altogether. There was something there that slowed the money down. Now it’s gone.” [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 ; New York Times, 1/21/2010; Los Angeles Times, 1/21/2010; Think Progress, 1/21/2010]
Broadening in Scope - According to reporter and author Jeffrey Toobin, CU lawyer Theodore Olson had originally wanted to present the case as narrowly as possible, to ensure a relatively painless victory that would not ask the Court to drastically revise campaign finance law. But according to Toobin, the conservative justices, and particularly Chief Justice Roberts, want to use the case as a means of overturning much if not all of McCain-Feingold (see May 14, 2012). In the original argument of the case in March 2009 (see March 15, 2009), Deputy Solicitor General Malcolm Stewart unwittingly changed the scope of the case in favor of a broader interpretation, and gave Roberts and the other conservative justices the opportunity they may have been seeking. [New Yorker, 5/21/2012]
Majority Opinion Grants Corporations Rights of Citizens - The majority opinion, written by Justice Anthony Kennedy, reads in part: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.… The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.” In essence, Kennedy’s ruling finds, corporations are citizens. The ruling overturns two precedents: 1990’s Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates (see March 27, 1990) in its entirety, and large portions of 2003’s McConnell v. Federal Election Commission (see December 10, 2003), which upheld a portion of the BCRA that restricted campaign spending by corporations and unions. Before today’s ruling, the BCRA banned the broadcast, cable, or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections. The law was restricted in 2007 by a Court decision to apply only to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate” (see June 25, 2007).
Encroachment on Protected Free Speech - Eight of the nine justices agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements; Justice Clarence Thomas is the only dissenter on this point. Kennedy writes, “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.” Kennedy’s opinion states that if the restrictions remain in place, Congress could construe them to suppress political speech in newspapers, on television news programs, in books, and on the Internet. Kennedy writes: “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
Fiery Dissent - Justice John Paul Stevens, the oldest member of the court, submits a fiery 90-page dissent that is joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Kennedy is joined by Roberts and fellow Associate Justices Samuel Alito, Antonin Scalia, and Thomas, though Roberts and Alito submit a concurring opinion instead of signing on with Kennedy, Scalia, and Thomas. “The difference between selling a vote and selling access is a matter of degree, not kind,” Stevens writes in his dissent. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.” Stevens writes that the Court has long recognized the First Amendment rights of corporations, but the restrictions struck down by the decision are moderate and fair. “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Speaking from the bench, Stevens calls the ruling “a radical change in the law… that dramatically enhances the role of corporations and unions—and the narrow interests they represent—in determining who will hold public office.… Corporations are not human beings. They can’t vote and can’t run for office,” and should be restricted under election law. “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
Case Originated with 2008 Political Documentary - The case originated in a 2008 documentary by the right-wing advocacy group Citizens United (CU), called Hillary: The Movie (see January 10-16, 2008). The film, a caustic attack on then-Democratic presidential candidate Hillary Clinton (D-NY) and Democrats in general, was released for public viewing during the 2008 Democratic presidential primaries. When the Federal Election Commission (FEC) won a lawsuit against CU, based on the FEC’s contention that broadcasting the film violated McCain-Feingold, the group abandoned plans to release the film on a cable video-on-demand service and to broadcast television advertisements for it. CU appealed the ruling to the Supreme Court, and most observers believed the Court would decide the case on narrow grounds, not use the case to rewrite election law and First Amendment coverage. [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 ; New York Times, 1/21/2010; Los Angeles Times, 1/21/2010; Think Progress, 1/21/2010; Associated Press, 1/21/2010; Christian Science Monitor, 2/2/2010]
Case Brought in Order to Attack Campaign Finance Law - Critics have said that CU created the movie in order for it to fall afoul of the McCain-Feingold campaign finance law, and give the conservatives on the Court the opportunity to reverse or narrow the law. Nick Nyhart of Public Campaign, an opponent of the decision, says: “The movie was created with the idea of establishing a vehicle to chip away at the decision. It was part of a very clear strategy to undo McCain-Feingold.” CU head David Bossie confirms this contention, saying after the decision: “We have been trying to defend our First Amendment rights for many, many years. We brought the case hoping that this would happen… to defeat McCain-Feingold.” [Washington Post, 1/22/2010]
Entity Tags: US Supreme Court, Theodore (“Ted”) Olson, Sonia Sotomayor, Clarence Thomas, Anthony Kennedy, Antonin Scalia, Citizens United, Bipartisan Campaign Reform Act of 2002, Barack Obama, Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, New York Times, Nick Nyhart, Evan Tracey, David Bossie, Hillary Clinton, Jeffrey Toobin, Federal Election Commission, John Paul Stevens, Malcolm Stewart, John G. Roberts, Jr, Los Angeles Times
Timeline Tags: Civil Liberties
Liberal MSNBC commentator and talk show host Keith Olbermann devotes one of his “special comments” to the Citizens United Supreme Court decision that allows unlimited corporate donations in elections (see January 21, 2010). Olbermann starts by reminding his viewers of the infamous 1857 Dred Scott ruling by the Court that found no African-American could be considered a US citizen (see March 6, 1857). Olbermann compares Chief Justice John Roberts, the author of the Citizens United decision, unfavorably to the much-maligned chief justice who wrote the Dred Scott ruling; Olbermann says that the Citizens United decision “might actually have more dire implications than” the 1857 finding. Olbermann says: “In short, the First Amendment—free speech for persons—which went into affect in 1791, applies to corporations, which were not recognized as the equivalents of persons until 1886. In short, there are now no checks on the ability of corporations or unions or other giant aggregations of power to decide our elections. None. They can spend all the money they want. And if they can spend all the money they want—sooner, rather than later—they will implant the legislators of their choice in every office from president to head of the Visiting Nurse Service. And if senators and congressmen and governors and mayors and councilmen and everyone in between are entirely beholden to the corporations for election and re-election to office soon they will erase whatever checks there might still exist to just slow down the ability of corporations to decide the laws.” Corporations can, in essence, buy and sell politicians at will, Olbermann says, and those politicians can change laws as their corporate donors dictate. “[A]ny legal defense you can structure now, can be undone by the politicians who will be bought and sold into office this November, or two years from now. And any legal defense which honest politicians can somehow wedge up against them this November, or two years from now, can be undone by the next even larger set of politicians who will be bought and sold into office in 2014, or 2016, or 2018.… Unless this mortal blow is somehow undone, within 10 years, every politician in this country will be a prostitute.” Labor unions, Olbermann says, will quickly be “strangled” by corporations “so they pose no further threat to the corporations’ total control of our political system.” Taxes on the wealthy and on corporations will be slashed, and social programs will be eliminated, “because money spent on the poor means less money left for the corporations.” Wars that benefit the military-industrial complex will become the norm. Racial and religious profiling will become commonplace, because the corporations will want to shift blame from their own machinations onto someone else, and people of different religions or ethnicities are easy targets for such blame. The “poor dumb manipulated b_stards” of the “tea parties” will “have a glorious few years as the front men as the corporations that bankroll them slowly unroll their total control of our political system,” until they are “banished, maybe outlawed, when a few of the brighter ones suddenly realize that the corporations have made them the Judas Goats of American freedom.” The Obama administration’s bank reforms will be eliminated by “his successor purchased by the banks.” Corporations will buy and control government entities from federal agencies to town councils. Billionaires will “buy and install their own city governments.” The mainstream media as we know it will disappear, because the corporate-owned government will require media outlets to reassure the populace that “everything’s great” and no one is needed to speak out against the government. The Internet, currently a venue that allows the most disparate of opinions to be voiced and shared, will be corralled and brought to heel. Olbermann concludes by saying: “The right wing won’t even tell their constituents that they are being sold into bondage alongside the rest of us. And why should they? For them, the start of this will be wonderful.” [MSNBC, 1/21/2010]
Liberal MSNBC commentator and talk show host Keith Olbermann devotes one of his “special comments” to the Citizens United Supreme Court decision that allows unlimited corporate donations in elections (see January 21, 2010). Olbermann starts by reminding his viewers of the infamous 1857 Dred Scott ruling by the Court that found no African-American could ever be considered a US citizen (see March 6, 1857). Olbermann compares Chief Justice John Roberts, the author of the Citizens United decision, unfavorably to the much-maligned chief justice who wrote the Dred Scott ruling; Olbermann says that the Citizens United decision “might actually have more dire implications than” the 1857 finding. Olbermann says: “In short, the First Amendment—free speech for persons—which went into affect in 1791, applies to corporations, which were not recognized as the equivalents of persons until 1886. In short, there are now no checks on the ability of corporations or unions or other giant aggregations of power to decide our elections. None. They can spend all the money they want. And if they can spend all the money they want—sooner, rather than later—they will implant the legislators of their choice in every office from president to head of the Visiting Nurse Service. And if senators and congressmen and governors and mayors and councilmen and everyone in between are entirely beholden to the corporations for election and re-election to office, soon they will erase whatever checks there might still exist to just slow down the ability of corporations to decide the laws.” Corporations can, in essence, buy and sell politicians at will, Olbermann says, and those politicians can change laws as their corporate donors dictate. “[A]ny legal defense you can structure now, can be undone by the politicians who will be bought and sold into office this November, or two years from now. And any legal defense which honest politicians can somehow wedge up against them this November, or two years from now, can be undone by the next even larger set of politicians who will be bought and sold into office in 2014, or 2016, or 2018.… Unless this mortal blow is somehow undone, within 10 years every politician in this country will be a prostitute.” Labor unions, Olbermann says, will quickly be “strangled” by corporations “so they pose no further threat to the corporations’ total control of our political system.” Taxes on the wealthy and on corporations will be slashed, and social programs will be eliminated, “because money spent on the poor means less money left for the corporations.” Wars that benefit the military-industrial complex will become the norm. Racial and religious profiling will become commonplace, because the corporations will want to shift blame from their own machinations onto someone else, and people of different religions or ethnicities are easy targets for such blame. The “poor dumb manipulated b_stards” of the “tea parties” will “have a glorious few years as the front men as the corporations that bankroll them slowly unroll their total control of our political system,” until they are “banished, maybe outlawed, when a few of the brighter ones suddenly realize that the corporations have made them the Judas Goats of American freedom.” The Obama administration’s bank reforms will be eliminated by “his successor purchased by the banks.” Corporations will buy and control government entities from federal agencies to town councils. Billionaires will “buy and install their own city governments.” The mainstream media as we know it will disappear, because the corporate-owned government will require media outlets to reassure the populace that “everything’s great” and no one is needed to speak out against the government. The Internet, currently a venue that allows the most disparate of opinions to be voiced and shared, will be corralled and brought to heel. Olbermann concludes by saying: “The right wing won’t even tell their constituents that they are being sold into bondage alongside the rest of us. And why should they? For them, the start of this will be wonderful.” [MSNBC, 1/21/2010]
Senator Charles Schumer (D-NY) calls the Supreme Court’s “Citizens United” overturning of corporate campaign finance restrictions (see January 21, 2010) a disaster. Schumer says, “With a stroke of a pen, the court decided to overrule the 100-year-old ban on corporate expenditures and override the will of millions of Americans who want their voices heard in our democracy.” Other Democrats agree. When questioned about Schumer’s comments by reporters from the Tampa Bay Times’s PolitiFact investigative arm, Schumer’s office says that the “100-year-old” reference refers to the 1907 Tillman Act (see 1907), and cites Justice John Paul Stevens’s dissent, which stated: “The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907.” PolitiFact finds that Schumer’s characterization is “a stretch” because of the differences between independent expenditures and direct contributions. Independent expenditures are monies spent by corporations to support or oppose an issue or a candidate. Direct contributions are donations to a candidate’s campaign. Corporations may not make direct contributions to campaigns; they have to form political action committees (PACs) for that purpose. The Citizens United decision does not affect that portion of the law. According to PolitiFact, the Tillman Act applies more to independent expenditures than to direct contributions, as does the 1947 Taft-Hartley Act (see June 23, 1947). Schumer’s characterization, PolitiFact finds, is not entirely accurate. “[H]e ignores the fact that the ban on direct donations from corporations to campaigns still exists,” PolitiFact writes. “And the oldest law that specifically banned independent expenditures dated to 1947. You could also argue that we should be dating this from the 1970s campaign finance laws, or even the 1990 Austin case (see March 27, 1990). So he’s exaggerating the scope of the ruling and how long the laws have been on the books.” [Tampa Bay Times, 1/22/2010] Representative Alan Grayson (D-FL) joins Schumer and other Democrats in criticizing the ruling, calling it the “worst Supreme Court decision since the Dred Scott case” (see March 6, 1857). [Think Progress, 1/22/2010]
The press reports that the US Chamber of Commerce and other lobbying organizations are the biggest winners in the controversial Citizens United decision by the US Supreme Court (see January 21, 2010), which allows corporations and labor unions to spend unrestricted amounts of money in support of, or opposition to, federal candidates. The Chamber of Commerce spends more on promoting Republican and conservative candidates than almost any other organization outside of the Republican Party itself. Other trade organizations, which tend to support Republicans, will almost certainly up their spending on behalf of their candidates, or in opposition to Democrats, according to experts interviewed by reporters, as will most corporations.
Unrestrained Spending to Favor Republicans - Democratic lawyer Marc Elias says: “It is a sweeping decision. In one opinion, the Court struck down all bans on corporate independent spending.” GOP lawyer Robert Kelner says that the ruling “will reflect a huge sea-change in campaign finance law. The Court went all the way. It really relieves any restrictions on corporate spending on independent advertising.” Another GOP lawyer, Ben Ginsberg, says: “It’s going to be the Wild Wild West. If corporations and unions can give unlimited amounts… it means that the public debate is significantly changed with a lot more voices, and it means that the loudest voices are going to be corporations and unions.” Former Federal Elections Commission member Brad Smith says, “This case will lead to more spending, I think, in political elections.” Lawrence M. Noble, the former general counsel for the FEC, says a lobbyist can tell a candidate, “We have got a million we can spend advertising for you or against you—whichever one you want.” Political science professor Robert Watson, who has consulted with Democratic campaigns, says: “It’s a game changer. And the last thing we need is for major corporations and nonprofits to have unlimited access to buy their members of Congress.” The New York Times writes: “It is expected to unleash a torrent of attack advertisements from outside groups aiming to sway voters, without any candidate having to take the criticism for dirty campaigning. The biggest beneficiaries might be well-placed incumbents whose favor companies and interests groups are eager to court. It could also have a big impact on state and local governments, where a few million dollars can have more influence on elections.” The National Journal states: “Over the long run, the ruling is likely to favor GOPers more than it does Dems. While it does apply to unions and corporations equally, Elias said the presumption is that corporations have more money to spend.” Major corporations will not openly run their own advertising, Kelner says, but they will funnel millions into trade associations such as the Chamber of Commerce. “If people think that individual companies are going to go out and buy ads, there may be some of that, but for the most part companies are going to flow this money through trade groups and other outside groups,” Kelner says. “This will open the floodgates for money flowing through groups like the US Chamber of Commerce and other associations [that] spend money on political advertising.… There was always a cloud of doubt around outside groups and trade associations, and this lifts those clouds of doubt and leaves behind clear skies.” Former Democratic National Committee (DNC) general counsel Joe Sandler says the ruling may open the door for more attacks on incumbents by corporate and other entities eager to spend money to ease them out. “You will see more sharp-edged, candidate-specific ads on the air closer to the election,” Sandler says. “That could make it more difficult for incumbents to take tough votes in an election year.” [Palm Beach Post, 1/21/2010; National Journal, 1/21/2010; New York Times, 1/21/2010] Think Progress, the liberal news Web site affiliated with the Center for American Progress, writes, “The ruling is a giant win for the US Chamber of Commerce and the big corporations, which tend to donate heavily to Republicans.” [Think Progress, 1/22/2010]
Citizens the Real Losers? - Paul Ryan of the Campaign Legal Center calls the ruling a complete loss for citizens, saying: “[T]he Supreme Court majority declared that corporate speech trumps the rights of American voters to government free of corporate corruption. The Court has nominally upheld campaign finance disclosure requirements applicable to corporations, but I think time will prove that those disclosure requirements are largely ineffective when dealing with contributions.” Brad Ashwell of the Florida Public Interest Research Group calls the ruling a “shocking burst of judicial activism.” Senator Russ Feingold (D-WI) calls the ruling “a terrible mistake,” and says the Court “chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president. Ignoring important principles of judicial restraint and respect for precedent, the Court has given corporate money a breathtaking new role in federal campaigns.” Feingold and other Congressional Democrats want to pass legislation that would curb the decision as soon as feasible. [Palm Beach Post, 1/21/2010; National Journal, 1/21/2010; New York Times, 1/21/2010]
Republicans Celebrate Victory for Free Speech, Say Decision Will 'Level Out' Spending - But Marco Rubio (R-FL), running for Florida’s open Senate seat, says, “Today’s Supreme Court ruling is a victory for those who truly value the freedoms outlined in our First Amendment.” And Republican consultant Ed Brookover, who represents Republican House candidate Allen West (R-FL), says he believes spending from liberal groups such as MoveOn.org will equal spending by corporations, and “level out” spending for the two parties. [Palm Beach Post, 1/21/2010; National Journal, 1/21/2010]
President Critical of Decision - President Obama speaks out against the decision (see January 21, 2010).
Entity Tags: Joseph Sandler, Bradley A. (“Brad”) Smith, US Supreme Court, Ed Brookover, Brad Ashwell, Ben Ginsberg, Barack Obama, Think Progress (.org), Russell D. Feingold, US Chamber of Commerce, Robert Kelner, Robert Watson, New York Times, Marc Elias, Lawrence M. Noble, Republican Party, Marco Rubio, National Journal, Paul S. Ryan
Timeline Tags: Civil Liberties
The Wall Street Journal celebrates the Citizens United Supreme Court decision (see January 21, 2010) as a victory for “free speech” (see January 21, 2010). In an unsigned editorial, the Journal celebrates the decision by stating that the Court used the Constitution to “rescue” the political system from “marauding government” elements, particularly a “reckless Congress.” The Journal claims that the Citizens United case rested on the Federal Election Commission (FEC)‘s refusal to allow the airing of a 90-minute political attack documentary on presidential candidate Senator Hillary Clinton (D-NY) because the film was “less than complimentary” of her. In reality, the FEC considered the film “electioneering” by the organization that released the film, Citizens United, and prohibited it from being shown on pay-per-view cable access (see January 10-16, 2008). The Court rejected campaign finance law’s limitation on corporate spending, prompting the Journal to state, “Corporations are entitled to the same right that individuals have to spend money on political speech for or against a candidate.” Any other state of affairs, the Journal writes, constitutes censorship. The Journal criticizes President Obama for speaking out against the decision (see January 21, 2010), saying that Obama put “on his new populist facade to call it ‘a major victory for big oil, Wall Street banks, health insurance companies,’ and other ‘special interests.’ Mr. Obama didn’t mention his union friends as one of those interests, but their political spending will also be protected by the logic of this ruling. The reality is that free speech is no one’s special interest.” The Journal dismisses promises by Congressional Democrats to pass legislation or even bring forth a constitutional amendment limiting corporate donations by stating, “Liberalism’s bullying tendencies are never more on display than when its denizens are at war with the speech rights of its opponents.” The Journal concludes by advocating that the Court overturn its 1976 Buckley v. Valeo decision (see January 30, 1976) that placed modest limits on corporate spending, in essence advocating the complete deregulation of campaign financing. “The Court did yesterday uphold disclosure rules, so a sensible step now would be for Congress to remove all campaign-finance limits subject only to immediate disclosure on the Internet,” the Journal states. “Citizens United is in any event a bracing declaration that Congress’s long and misbegotten campaign-finance crusade has reached a constitutional dead end.” [Wall Street Journal, 1/22/2010]
In his weekly radio and Internet address, President Obama denounces the recent Citizens United Supreme Court ruling that lets corporations and labor unions spend unlimited amounts on political campaign activities (see January 21, 2010). “This ruling strikes at our democracy itself,” he says. “I can’t think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections.… This ruling opens the floodgates for an unlimited amount of special interest money into our democracy. It gives the special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way—or to punish those who don’t.… The last thing we need to do is hand more influence to the lobbyists in Washington or more power to the special interests to tip the outcome of elections.” The decision, Obama says, will make it harder to enact financial reform, close tax loopholes, promote energy independence, and protect patients from health insurance abuses. “We don’t need to give any more voice to the powerful interests that already drown out the voices of everyday Americans,” Obama says. “And we don’t intend to.” He says he is asking Congress to work with the White House to “fight for the American people” and develop a “forceful bipartisan response” to the decision. “It will be a priority for us until we repair the damage that has been done.” Norm Eisen, Obama’s special counsel for ethics and government reform, has already met with Democratic Congressional leaders Senator Charles Schumer (D-NY) and Representative Chris Van Hollen (D-MD) to begin talks on how Congress might respond. [New York Times, 1/24/2010; Associated Press, 1/25/2010]
James Bopp Jr. [Source: Associated Press / Politico]A former lawyer for Citizens United (CU), James Bopp Jr., confirms that the organization had a “10-year plan” that culminated in the recent Citizens United ruling that overturned most of US campaign finance law (see January 21, 2010). Bopp has been battling government restrictions on abortion (see November 1980 and After) and campaign finance (see Mid-2004 and After, January 10-16, 2008, and March 24, 2008) for much of his 35-year career. He calls his opponents, including President Obama, “socialists,” and justifies his views by citing the First Amendment. Bopp did not argue the case before the Supreme Court; Citizens United replaced him with what the New York Times calls “a less ideological and more experienced Washington lawyer” (see March 15, 2009). But Bopp is the lawyer who advised CU to use its documentary about presidential candidate Hillary Clinton (D-NY—see January 10-16, 2008) as a test case to push the limits of corporate spending. He says his strategy continues, with the ultimate goal of deregulating campaign finance completely. “We had a 10-year plan to take all this down,” Bopp says. “And if we do it right, I think we can pretty well dismantle the entire regulatory regime that is called campaign finance law.… We have been awfully successful, and we are not done yet.” Law professor and campaign finance law expert Richard Hasen says the CU case “was really Jim’s brainchild.” Hasen explains: “He has manufactured these cases to present certain questions to the Supreme Court in a certain order and achieve a certain result. He is a litigation machine.” Bopp has other cases on appeal with various courts, all designed to do what the Times says “chip away at some of the disclosure laws left intact by the Supreme Court’s ruling in the Citizens United case.” One of Bopp’s main goals is to end the ban on direct donations by corporations to candidates, a goal law professor Nathaniel Persily says is logical in light of Bopp’s earlier efforts: “If you cannot ban corporate spending on ads, how is it that you are allowed to ban corporate contributions to candidates? That is the next shoe to drop.” He also wants to end all disclosure requirements, explaining, “Groups have to be relieved of reporting their donors if lifting the prohibition on their political speech is going to have any meaning.” Forcing groups who buy political commercials to disclose their donors is nearly as punitive, he says, “as an outright criminal go-to-jail-time prohibition.” Bopp says he harbors no ill will towards CU from replacing him with another lawyer to argue the case before the Court. “I understand that law is art,” he says. “Picasso, Van Gogh, Michelangelo—they are all very different, but all create masterpieces.” [New York Times, 1/25/2010]
Jan Witold Baran. [Source: Metropolitan Corporate Counsel]Author and law professor Jan Witold Baran cheers the Citizens United decision by the Supreme Court that allows virtually unlimited spending by corporations and labor unions in political campaigns (see January 21, 2010). Baran, who alerts readers that he filed an amicus curiae brief with the Court in favor of plaintiff Citizens United, characterizes the ruling as allowing “corporations and unions [to] spend money on political advertising that urges the election or defeat of a candidate for public office.” He cites President Obama’s warning that the decision will unleash a “stampede of special-interest money in our politics” (see January 24, 2010), and derides that warning. He reminds readers that the decision retains the ban on direct contributions by corporations and unions, and that corporations and unions may not “spend money in cahoots with political parties,” but must remain “independent” and not coordinate with candidates or their campaigns. He also tells readers that the decision mandates disclosure, saying that the ruling “upheld the laws that require any corporate or union spender to file reports with the Federal Election Commission within 24 hours of spending the first dime.” Because of these retentions, Baran writes, there will be no “stampede of special-interest money.” The ruling will put an end to so-called “issue ads,” Baran predicts (see March 27, 1990 and June 25, 2007), the ads that either support or attack an issue and then urge the viewer to contact their congressperson. Because of the new ruling, the ads can now exhort viewers to vote for one candidate or against another because of the issues. Baran goes on to write, “There is also no factual basis to predict that there will be a ‘stampede’ of additional spending.” Twenty-six states and the District of Columbia already have laws permitting some corporate and union spending, he says, and notes: “There have been no stampedes in those states’ elections. Having a constitutional right is not the same as requiring one to exercise it, and there are many reasons businesses and unions may not spend much more on politics than they already do. As such, the effect of Citizens United on the 2010 campaigns is debatable.” He says that the ruling is primarily a blowback against Congress’s meddlesome penchant to restrict “campaign speech.… Congress interpreted its power to regulate campaigns as a license to limit, restrict, burden, and confuse anyone who wished to engage in political campaigns.” Now, he says, the Court has reminded Congress that the First Amendment trumps its ability to regulate (see January 21, 2010 and January 22, 2010). The ruling is “a breath of fresh air” for everyone except Washington lawyers, Baran says, and concludes: “The history of campaign finance reform is the history of incumbent politicians seeking to muzzle speakers, any speakers, particularly those who might publicly criticize them and their legislation. It is a lot easier to legislate against unions, gun owners, ‘fat cat’ bankers, health insurance companies, and any other industry or ‘special interest’ group when they can’t talk back.” [New York Times, 1/25/2010; Wiley Rein LLP, 2012] Many observers besides Obama predict dire consequences as a result of the Court ruling (see January 21, 2010, January 21, 2010, January 21, 2010, January 21, 2010, January 21, 2010, January 21, 2010, January 21-22, 2010, January 21, 2010, and January 26, 2010). And unfortunately for Baran’s predictions, a March 2010 appeals court verdict (see March 26, 2010) will join with the Citizens United ruling, particularly a loophole in the ruling (see February 27, 2010), to unleash just the kind of corporate spending that Baran says would never happen.
During a conference at Georgetown University Law Center, former Supreme Court Justice Sandra Day O’Connor is “obliquely” critical of the recent Citizens United decision allowing corporations and labor unions to fund political activities without spending limits (see January 21, 2010), in the words of New York Times reporter Adam Liptak. Liptak describes O’Connor as “not sound[ing] happy” about the decision, but notes that instead of giving a pointed critique of the ruling, she advises her audience to see the McConnell decision she co-wrote banning corporate spending in political campaigns (see December 10, 2003)). Of the current Court’s ruling, she says, “Gosh, I step away for a couple of years and there’s no telling what’s going to happen.” Since her retirement from the Court, she has become a vocal advocate for doing away with judicial elections in the states; she says that the Citizens United ruling will likely create “an increasing problem for maintaining an independent judiciary.… In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.” She says that with the combination of unlimited corporate and union spending, and the practice of electing state judges, “We can anticipate that labor unions and trial lawyers, for instance, might have the financial means to win one particular state judicial election. And maybe tobacco firms and energy companies have enough to win the next one. And if both sides unleash their campaign spending monies without restrictions, then I think mutually-assured destruction is the most likely outcome.” [New York Times, 1/26/2012] Days after the Times reports on O’Connor’s remarks, Times editorial writer Dorothy Samuels will agree, writing that “[t]he Citizens United ruling promises to make that problem worse, possibly much worse.” The title of her editorial is “Hanging a ‘For Sale’ Sign Over the Judiciary.” [New York Times, 1/29/2012]
Supreme Court Justice Samuel Alito listens to President Obama’s State of the Union address. [Source: Renovo Media]President Obama sharply criticizes the recent Citizens United decision by the Supreme Court, giving corporations and unions the right to give unlimited and anonymous donations to organizations supporting or opposing political candidates (see January 21, 2010), during the annual State of the Union address. Obama gives the address to a joint session of Congress, with three Supreme Court members in attendance. “With all due deference to the separation of powers,” Obama says, “last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities. They should be decided by the American people. And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.” Democrats in the chamber applaud Obama’s remarks, while Republicans do not. In his response, Justice Samuel Alito, one of the five conservatives on the Court who joined in the majority decision, shakes his head and mouths, “Not true, not true” (some lip readers will later claim that Alito says, “That’s not true”). It is highly unusual for a president to so directly criticize a Supreme Court ruling, especially in a State of the Union address. The next day, Vice President Joe Biden defends Obama’s remarks in an appearance on Good Morning America. Biden says: “The president didn’t question the integrity of the court. He questioned the judgment of it. I think [the ruling] was dead wrong and we have to correct it.” Supreme Court expert Lucas A. Powe says, “I can’t ever recall a president taking a swipe at the Supreme Court like that.” Experts say that the closest precedent they can find is President Franklin Roosevelt’s 1937 criticism of the Court in his address to Congress. Yale law professor Jack Balkin says, “The important thing to me is that the president thinks the Citizens United decision is important enough that he would include it.” Reactions are split along ideological lines. Senator Orrin Hatch (R-UT) calls Obama “rude” to criticize the Court’s verdict. Senator Russ Feingold (D-WI) calls Alito’s reaction “inappropriate.” Legal expert Barbara A. Perry of Sweet Briar College says both Obama and Alito were in the wrong, calling the interaction “an unfortunate display for both branches.” White House deputy press secretary Bill Burton says: “One of the great things about our democracy is that powerful members of the government at high levels can disagree in public and in private. This is one of those cases.” Alito refuses to comment. Alito and Obama have a contentious history. As a senator, Obama was one of the most outspoken voices against Alito’s confirmation as a Supreme Court justice (see October 31, 2005 - February 1, 2006), saying then of Alito, “[W]hen you look at his record—when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American’s individual rights.” For his part, Alito snubbed the formal visit paid by Obama and Biden to the Court. [New York Daily News, 1/28/2010; Washington Post, 1/28/2010] Months later, Obama’s warning will be proven to be correct, as a media investigation will show the US Chamber of Commerce using foreign monies to fund attack ads and other political activities under the cloak of the Citizens United decision (see October 2010).
Entity Tags: Jack Balkin, Barbara A. Perry, Barack Obama, Franklin Delano Roosevelt, US Congress, US Supreme Court, Samuel Alito, Orrin Hatch, Lucas A. (“Scot”) Powe, Joseph Biden, US Chamber of Commerce, Russell D. Feingold, Bill Burton
Timeline Tags: Civil Liberties
A number of conservative media outlets accuse President Obama of engaging in “demagoguery” in his recent comments that warned the Citizens United decision (see January 21, 2010) could open the door for foreign corporations to contribute money for use in American elections (see January 27-29, 2010). [Media Matters, 1/28/2010] National Review editor Ramesh Ponnuru writes, “The most demagogic moment (so far!) came when the president claimed, falsely, that the Supreme Court had given a green light to foreign corporations to run political ads.” [National Review, 1/27/2010] Law professor and former Federal Elections Commission member Bradley A. Smith echoes Ponnuru’s accusation, writing that Obama “engaged in demagoguery of the worst kind.… The president’s statement is false.… This is either blithering ignorance of the law or demagoguery of the worst kind.” [National Review, 1/27/2010] Former Alaska Governor Sarah Palin (R-AK), the vice-presidential candidate on the McCain-Palin ticket in 2008, says on Fox News that Obama’s criticism “may not be true,” and accuses Obama of “embarrassing our Supreme Court.” She says: “This is why people are disenchanted and are becoming more and more disengaged really from what their government is doing, because when we see an issue like this—words spoken that may not be true coming from our president and embarrassing our Supreme Court and not respecting the separation of powers—we have a problem. And that’s illustrated there by that justice mouthing those words, ‘not true.’ Now, one or the other is being disingenuous here—either our president in what he just claimed, or the Supreme Court justice.” MSNBC host Joe Scarborough calls Obama’s warning “just not the truth,” saying that Obama’s statements were “not based in fact [or] the law.… So the president was not served well last night; he went out and said something that just wasn’t the truth. And I’m sure that that was very difficult for the Supreme Court to sit there and have the president tell America and the world these jokers on the front row just opened up American campaigns to foreign entities when that in fact is just not the truth.” [Media Matters, 1/28/2010] Conservative talk show host Rush Limbaugh tells his listeners, “It’s clear the president didn’t know what he was talking about or he was just out-and-out lying because he knows he’s not going to be fact-checked on matters like that by most in the state-controlled media.” [Media Matters, 1/28/2010] Prominent conservative blogger “Allahpundit” accuses Obama of “demagoguing the First Amendment” [HotAir (.com), 1/27/2010] , an accusation echoed by conservative blogger Glenn Reynolds, who responds to Allahpundit’s post by writing that Obama’s “demagoguery [will turn] into a negative for him.” [Glenn Reynolds, 1/27/2010] The next day, the Wall Street Journal will demand that Obama “get his facts straight” about the issue (see January 29, 2010). The liberal media watchdog organization Media Matters notes that Obama’s concerns were echoed by the four dissenting Supreme Court Justices in the Citizens United decision, as noted in the dissent by Justice John Paul Stevens and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. The majority decision, Stevens wrote, “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.” Cornell law professor Michael Dorf agreed with Stevens, telling a reporter that “[i]t is a plausible inference from the court’s opinion that [foreign] money can’t be restricted.” Dorf’s position is echoed by campaign finance reform advocate Fred Wertheimer and the leaders of the non-partisan Campaign Legal Center, Media Matters notes. [Media Matters, 1/28/2010] And the day after the decision was rendered, Smith, who accused Obama of either “blithering ignorance… or demagoguery,” told a reporter that though the law prohibits foreign nationals from contributing money to groups involved in election politics, “To the extent that there may be some foreign corporations that don’t fall under the category of foreign nationals [and could contribute to election organizations], that might be something Congress can deal with.” [Washington Independent, 1/22/2010]
Entity Tags: Fred Wertheimer, “Allahpundit”, John Paul Stevens, Barack Obama, Campaign Legal Center, Glenn Reynolds, Bradley A. (“Brad”) Smith, US Supreme Court, Wall Street Journal, Sonia Sotomayor, Stephen Breyer, Media Matters, Joseph Scarborough, Ramesh Ponnuru, Michael Dorf, Ruth Bader Ginsburg, Sarah Palin, Rush Limbaugh
Timeline Tags: Civil Liberties
In a highly unusual action for a sitting Supreme Court Justice, Justice Clarence Thomas strongly defends the Court’s recent Citizens United ruling that allows unlimited corporate and union funding of campaign activities (see January 21, 2010). He makes his remarks at the Stetson University College of Law in Gulfport, Florida. Thomas was part of the 5-4 majority that ruled on the case. He also says that he refused to attend the recent State of the Union address by President Obama, where fellow Justice Samuel Alito apparently contradicted Obama’s critical characterization of the ruling (see January 27-29, 2010), because under Obama, these addresses have become “partisan,” stating: “I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there… there’s a lot that you don’t hear on TV—the catcalls, the whooping and hollering and under-the-breath comments (see September 9, 2009). One of the consequences is now the Court becomes part of the conversation, if you want to call it that, in the speeches. It’s just an example of why I don’t go.” Thomas mocks media criticisms of the ruling, saying: “I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company. These are corporations.” It is a mistake, Thomas says, to consider regulation of corporations’ campaign activities as “some sort of beatific action,” and he cites the 1907 Tillman Act, the first federal legislation banning corporate contributions to federal candidates (see 1907), as being sparked by racism, saying: “Go back and read why [Senator Benjamin] Tillman introduced that legislation. Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.” Thomas says the underpinning of the decision was the First Amendment’s protection of speech regardless of how people choose to assemble to participate in the political process. “If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association,” he says. “If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association. But what if you put yourself in a corporate form?” The answer would be the same, Thomas says. [New York Times, 2/3/2010]
Some “tea party” leaders express their dislike of the Supreme Court’s recent Citizens United decision allowing unlimited corporate spending in elections (see January 21, 2010), a position that puts them at odds with the Republican Party and mainstream US conservatism. Hours after the decision was handed down, Republican National Committee chair Michael Steele hailed it as “an important step in the direction of restoring the First Amendment rights” of corporations (see January 21, 2010, January 22, 2010, and February 2, 2010), but some tea partiers see the decision much differently. Texas tea party activist Shane Brooks says in an email to Talking Points Memo reporter Zachary Roth: “This decision basically gives the multinational corporations owned by foreign entities [the right] to pour unlimited funds into the pockets of corrupt corporate backed politicians to attack everything this country stands for. We might as well be able to vote for Disney or the SEIU as president of the United States of America.” Nashville Tea Party official Kevin Smith recently wrote that the ruling “puts corporations in a position to crowd out smaller competition and buy politicians from the local sheriff to the president himself.” Dale Robertson, the leader of TeaParty.org, said after the decision: “It just allows them to feed the machine. Corporations are not like people. Corporations exist forever, people don’t. Our founding fathers never wanted them; these behemoth organizations that never die, so they can collect an insurmountable amount of profit. It puts the people at a tremendous disadvantage.” Sacramento tea party activist Jim Knapp tells Roth: “Most of the anger by tea party supporters is directed at the effects of special interest money.… I believe that campaign finance reform is the most important political issue facing America. I would even go so far as to say that this issue is even more important that our current financial crisis and jobs. Everything in American politics is affected by special interest money. From who controls our monetary policies in treasury and the Fed to regulation of Wall Street. I would also venture to say that it was special interest money which precipitated the current economic crisis.” Everett Wilkinson, the leader of a Florida tea party group, tells Roth that his group has “mixed feelings” about the ruling. On the one hand, he says, “getting corporations more involved with politics could be a detrimental thing.” The ruling also upholds free speech, he counters. FreedomWorks, the lobbying organization that helped found the tea party movement, and officials of the Tea Party Patriots refuse to speak to the issue with Roth. The reporter writes: “[T]heir opposition to the Court’s ruling on behalf of corporations hints at an ideological split between the movement and the GOP that has long existed under the surface. Tea Partiers—especially the rank-and-file activists, as opposed to the movement leaders—often embrace a more populist, anti-corporate position than does the Republican Party, or the conservative movement that under-girds it. This difference underlies much of the tension we’re increasingly seeing between Tea Partiers and the GOP.” [TPM Muckraker, 2/3/2010]
Senator Charles Schumer (D-NY) and Representative Chris Van Hollen (D-MD) are introducing legislation that would undo the recent Citizens United Supreme Court decision that allows corporations and labor unions to spend unlimited amounts on political advertising (see January 21, 2010). The proposed legislation is a “patchwork,” in the New York Times’s phrasing, “of spending restrictions and disclosure requirements—many based in current laws. The measure would greatly expand the scope of an existing ban on political commercials paid for by foreign corporations, ban political commercials paid for by government contractors or recipients of bailout money, and force corporations and unions to make public details of what they spend directly or through advocacy groups.” Schumer and Van Hollen say they want the legislation enacted in time for it to constrain spending in the November 2010 midterm elections. “Otherwise the court will have predetermined the winner of the midterm elections,” Schumer says. “It won’t be the Republicans or the Democrats. It will be corporate America.” At least one Republican senator would have to vote to allow the bill to come up for a vote, and as of yet, it is unclear than any Republican senator will do so. Schumer and Van Hollen say they crafted the legislation to remain in line with Citizens United, providing firmer constitutional ground for the spending restrictions and disclosure requirements in the bills. The Times explains, “The Court has frowned on speech restrictions aimed at specific speakers and leaned toward disclosure as a constitutionally permissible response to fears of corruption or undo influence.” The proposed legislation would not ban corporate or labor union spending outright, but would ban spending by any domestic domestic corporation with at least 20 percent foreign ownership, any corporation whose board included a majority of foreigners, or any corporation where executive control belonged to a foreign company or government. The disclosure requirements are broader—if a corporation paid for a political ad, the legislation would require that corporation’s CEO to appear at the end of the ad to take responsibility for the message. For advocacy group ads, the biggest donor would be required to appear, and the five biggest corporate contributors would be named in the ad. The legislation would also force corporations and interest groups to set up political spending accounts and file reports of their activities. [New York Times, 2/11/2010] A Times editorial appearing six days after the initial press reports lauds the legislation as “a sensible” if “partial” response to the Citizens United decision. The Times will state: “The Schumer-Van Hollen bill is expected to be introduced later this month. Congressional leaders should put it on a fast track so it can be in place in time for this year’s midterm elections. It could help keep special interest money in check until the real solution comes: a Supreme Court ruling reversing the deeply antidemocratic Citizens United decision.” [New York Times, 2/17/2010]
Florida State Representative Charles Van Sant (R-FL) submits what he calls the “Florida for Life Act,” which will make all abortions illegal in Florida. The law directly challenges the Supreme Court’s 1973 ruling that abortions are legal in the US (see January 22, 1973), and makes no exceptions for incest or rape (abortions would be legal only if the life of the mother were at risk). If passed, the act would punish abortion providers, not the expectant mothers, with a first-degree felony and a penalty of up to life in prison. [House of Representatives, 2/17/2010; Women's Choice, 2/23/2010] The bill states that “The Legislature of the people of the State of Florida finds that all life comes from the Creator and begins at conception.” According to the Sarasota Herald-Tribune, the bill “openly challenges the legitimacy of the US Supreme Court” by saying: “The Legislature finds that the justices of the United States Supreme Court are not qualified to determine, establish, or define the moral values of the people of the United States and specifically for the people of Florida. The Supreme Court’s removal of moral and political questions from the political power of the people to determine, under color of constitutional adjudication, is a violation of the peoples’ right to self-government guaranteed under the Constitution of the United States.” [Sarasota Herald-Tribune, 10/15/2010; Sarasota Herald-Tribune, 2/7/2011] In February 2011, a Sarasota Herald-Tribune editorial will call the bill “extreme to the extreme” and not “worth the time lawmakers may waste on it,” claiming that if passed, the law “would flout US law and thwart the state constitution’s privacy clause.” [Sarasota Herald-Tribune, 2/7/2011] Some Florida Republicans will refuse to publicly endorse the bill, saying it goes too far. As of March 2011, the bill is not predicted to gain passage. [Florida Independent, 12/2/2010; St. Petersburg Times, 3/22/2011]
Campaign finance lawyers tell the New York Times that a loophole in the recent Citizens United Supreme Court decision, a decision that allows corporations and labor unions to spend unlimited amounts on political advertising (see January 21, 2010), could allow corporations and unions to make their donations anonymously and avoid the disclosure requirements that the Citizens United ruling left in place. Two earlier Court decisions, the 1986 Federal Election Commission v. Massachusetts Citizens for Life (see December 15, 1986) and the 2007 Wisconsin Right to Life rulings (see June 25, 2007), could be used in tandem with the Citizens United decision to make it possible for corporations and unions to donate anonymously to trade organizations and other nonprofit entities. Those entities could then use the money to finance political advertisements. Those nonprofit groups, usually called 501(c) groups after the applicable portion of the IRS tax code, had been allowed to finance so-called “electioneering communications” long before the Citizens United decision, but until now, corporations have not been allowed to spend unlimited amounts of money advocating for a candidate’s election or defeat. Nor could they donate money to nonprofit groups that engage in “electioneering communications.” The 1986 decision gave some nonprofit organizations the right to advertise for or against political candidates, but banned corporations and unions from giving money to those groups. The Citizens United decision overturned that ban. And the 2006 ruling allowed corporations to spend money on “electioneering communications.” Now, experts like corporate lawyer Kenneth A. Gross, a former associate general counsel for the Federal Election Commission (FEC), believe that corporations will donate heavily and anonymously to those “third party” groups to buy political advertising. “Clearly, that’s where the action’s going to be,” Gross says. Corporations that spend money directly on political advertising still have to identify themselves in the ads, Gross says, and report their donors. Many corporations do not want to identify themselves in such advertisements. The nonprofit groups are an attractive alternative to public disclosure, Gross says. Congressional Democrats call the loophole dangerous, and have proposed legislation that would require nonprofit groups to disclose their donors for political advertising (see February 11, 2010). The Times states, “It is impossible to know whether corporations or unions are taking advantage of the new freedom to funnel pro- or anti-candidate money through nonprofit organizations.” [New York Times, 2/27/2010]
An appeals court overturns the verdict in Snyder v. Phelps, in which the father of a slain Marine was awarded $5 million in a judgment against the anti-gay Westboro Baptist Church (WBC—see November 27, 1955 and After). WBC members had picketed the funeral of Matthew Snyder (see March 10, 2006 and After), and Snyder’s father Albert Snyder filed a lawsuit against the WBC claiming harassment and the infliction of severe emotional distress (see October 2007 and April 3, 2008). The appeals court rules that even though the WBC protesters displayed “utterly distasteful” signs at Snyder’s funeral, the signs commented on issues of “public concern” and were therefore constitutionally protected speech. The court also orders Snyder to pay the church over $16,000 in legal feels and court costs, a decision Snyder calls “a slap in the face.” Snyder will appeal to the US Supreme Court (see March 2, 2011). [Southern Poverty Law Center, 12/2007; Southern Poverty Law Center, 2012; Anti-Defamation League, 2012]
Chief Justice John Roberts tells a group of law students that President Obama and Congressional Democrats turned the recent State of the Union address into a “pep rally” targeting Court justices, and questions the need for justices to attend the event. During the speech, Obama criticized the Citizens United decision allowing corporations to spend unlimited amounts of money on political advertising (see January 21, 2010), and Justice Samuel Alito drew media attention by mouthing the words “Not true” in response to Obama’s remarks (see January 27-29, 2010). Roberts is referring to the fact that many Congressional Democrats cheered the president’s remarks. He calls the event “very troubling,” and says, “To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we are there.” Six of the Court’s nine justices, including Alito and Roberts, were in attendance. Roberts says he is less concerned about the criticism of the Court than the expectation that the justices must sit silently: “Anybody can criticize the Supreme Court.… I have no problem with that. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the Court—according to the requirements of protocol—has to sit there expressionless, I think is very troubling. It does cause me to think… why are we there?” Justices Antonin Scalia and Clarence Thomas did not attend, complaining that the address would be a “partisan” event (see February 2, 2010), and Justice John Paul Stevens, who strongly dissented from the Citizens United decision, did not attend due to age and health issues. White House press secretary Robert Gibbs responds strongly to Roberts’s remarks, saying, “What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections, drowning out the voices of average Americans.” [Los Angeles Times, 3/10/2010] Three weeks after Roberts makes his observations, conservative talk show host David Limbaugh will call Obama’s criticisms a “public assault” on the justices. [David Limbaugh, 4/5/2012]
The 11th Circuit Court of Appeals dismisses an appeal from ‘birther’ lawyer Orly Taitz of a $20,000 judgment levied against her by a Georgia judge (see October 13-16, 2009). The court finds that Taitz’s arguments are “unpersuasive and therefore affirm[s] the district court’s sanctions judgment.” Taitz says she has no intention of paying the fine and will appeal it to the US Supreme Court (see July 7 - August 16, 2010). [Columbus Ledger-Enquirer, 3/15/2010] Taitz’s appeal contains the following: “[A]llowing sanctions by judge [sic] Land to stand, will signify beginning of tyranny in the United States of America and end to the Constitutional Republic which is the foundation of this nation. The question is as follows: ‘If the judiciary can sanction an attorney for bringing an action to uphold a Constitutional right, what is next? Will FEMA camps be turned intothe next GULAG? Will we see a wave of political assassinations of dissidents, as were seen in numerous totalitarian regimes around the World, such as regime of Saddam Hussein in Iraq or regime of Mahmud Ahmadinejad in Iran?’ This is the most dangerous road a judiciary can take. When judiciary is pandering to an illegitimate dictator, who sits in the White House, using a Social Security number of another individual and not having a valid long form birth certificate, the country descends into tyranny.” [Washington Examiner, 7/7/2010]
Adam Skaggs, an attorney for the Brennan Center for Justice, writes that the controversial Citizens United decision by the Supreme Court (see January 21, 2010) is going to have a huge impact on judicial elections in 2010 and beyond. The record for the costliest judicial race in US history was set in a 2004 Illinois contest between Lloyd Karmeier and Gordon Maag, competing for the bench in the state’s 5th Judicial District. Between them, they raised and spent almost $9.4 million, more than double the previous national record, and an amount Karmeier later called “obscene.” Special interests on both sides of the election became heavily involved, with Karmeier’s corporate donations from such organizations as the US Chamber of Commerce and State Farm Insurance winning out over Maag’s donations from trial lawyers. After the election, Karmeier cast the deciding vote in a case that saved State Farm $500 million. An Ohio labor official said in commenting on the often-heavy spending on judicial races, “We figured out a long time ago that it’s easier to elect seven judges than to elect one hundred and 32 legislators.” The Citizens United case, Skaggs writes, will undoubtedly lead to corporate spending in judicial races like never before. That spending, he writes, “threatens to further erode the judiciary’s independence.” Even former Supreme Court Justice Sandra Day O’Connor has said that “Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.” Skaggs cites a number of races that will likely be targets for big corporate donors:
Illinois Supreme Court Chief Justice Thomas R. Fitzgerald is a probable target after striking down a 2005 law that placed caps on medical malpractice claims; Skaggs predicts the same corporate interests that helped Karmeier win a judicial seat will attempt to defeat Fitzgerald.
In Alabama, three seats currently held by Republicans are contested. One of these, Alabama Supreme Court Justice Tom Parker, is the likely recipient of heavy corporate funding, because, as Skaggs writes, groups like the Business Council of Alabama want Parker on the bench to protect conservative interests on economic issues. That corporate spending will likely outstrip spending on Democratic candidates, which will come primarily from liberal judicial groups and the state’s Democratic Party.
A 2006 study by the New York Times showed that judges routinely decide cases involving campaign donors, and in 70 percent of those cases, find in favor of those donors. One judge in the study voted on behalf of his donors 91 percent of the time. In Nevada, judges routinely accept huge donations even when running unopposed, often from donors who have cases pending before those judges. Nevada voters will decide in the November elections whether to scrap the system of an elected judiciary and move to an appointment system. Skaggs recommends that states should adopt public financing systems for judicial elections (four states—New Mexico, North Carolina, West Virginia, and Wisconsin already do so) and eliminate entirely the concept of outside interests donating to judicial campaigns. He recommends stricter disclosure rules, so that the public knows who is contributing how much to judicial candidates. And, he writes, “states should institute new disqualification regulations to ensure that, if a judge is assigned to hear the case of a major campaign supporter, he or she must step aside and let a wholly impartial judge preside.” Otherwise, he writes: “The very legitimacy of the courts depends on the public believing that judges will treat every party without bias or favor. If, in the Citizens United era, states don’t adopt public financing and strong disclosure and disqualification rules, the judiciary’s credibility will dissolve—and quickly.” [New Republic, 4/5/2010]
The non-partisan PolitiFact, an organization sponsored by the St. Petersburg Times, responds to a recent claim that Supreme Court Justice Antonin Scalia has approved a case challenging President Obama’s US citizenship (see October 31, 2008 and After). The claim comes from a chain email circulating around the Internet that purports to feature an Associated Press (AP) article titled, “Very Quietly Obama’s Citizenship Case Reaches the Supreme Court.” The article is not a legitimate AP creation, according to AP spokesperson Jack Stokes, and in fact is an April Fool’s Day joke. The email quotes the article as saying, “Under growing pressure from several groups, Justice Antonin Scalia announced that the Supreme Court agreed on Tuesday to hear arguments concerning Obama’s legal eligibility to serve as president in a case brought by Leo Donofrio of New Jersey.” Donofrio has indeed sued New Jersey Secretary of State Nina Wells in an attempt to block New Jersey’s certification of Obama’s presidential victory there in November 2008; Donofrio claimed that Obama has dual US-British citizenship and therefore is ineligible to be president. The case was turned down by the Supreme Court. PolitiFact notes that it takes four Justices, not one, to have the Court hear a case. In such an instance, the Court issues a “writ of certiorari,” sometimes referred to as “cert.” No individual justice ever makes such an announcement. Donofrio’s case first went to Justice David Souter, who denied the request. It then went to Justice Clarence Thomas, who submitted it to committee. The Court denied “cert” for the case. PolitiFact calls the claim “ridiculous and misleading.” [St. Petersburg Times, 6/28/2010]
Orly Taitz. [Source: The Smoking Gun]California “birther” attorney Orly Taitz, attempting to avoid paying a $20,000 fine levied against her by a Georgia district court judge (see October 13-16, 2009), says after losing an appeal (see March 15, 2010) that she intends to appeal the fine to the Supreme Court. She files an application for stay of the fine to Justice Clarence Thomas, who denies it; she then refiles the application with Justice Samuel Alito, meanwhile demanding proof that Thomas actually denied the application [Washington Examiner, 7/7/2010; Columbus Ledger-Enquirer, 8/4/2010] and asking Chief Justice John Roberts to verify Thomas’s dismissal. In her filing with Roberts, Taitz says she found the notice of dismissal on the Supreme Court’s Web site on a Saturday, just hours after “some Obama supporters” posted comments on her Web site “gloating about the fact that Justice Thomas dismissed her application.” She says that according to her examination, the Supreme Court docket has been altered and tampered with. She says that a previous appeal she had filed with the Court had also been deleted without explanation, and writes: “Currently, there is a clear pattern of entries being made on the docket of the Supreme Court, or entries or even cases deleted, when the court is closed and the justices and the clerks are not there.… Supreme Court is not a city bus, when one can go in and out any time he feels like.” Taitz demands to be allowed to visit the Supreme Court with a “forensic document expert” who can verify the validity of “the orders pertaining to her cases and verify and clarify, that there is a valid signature of Justice Thomas and his clerk on the denial of application 10A56, entered on the docket on Saturday 17, 2010” and of other cases she has filed, and demands that she and a “computer security expert” be allowed to examine the electronic docket of the cases pertaining to her and her clients to ascertain if they have been altered. [Orly Taitz, 7/20/2010; Orange County Register, 7/22/2010] Alito refers the application to the full Court, which dismisses the application without comment. [United Press International, 8/16/2010] It is unclear what, if any, response Roberts gives to Taitz. After the Court rejects her appeal, the government will place a lien on her property (see August 9, 2010 - January 11, 2011).
US Chamber of Commerce President and CEO Thomas Donahue blasts Senate Democrats for attempting to pass the DISCLOSE Act, which, if approved by Congress and signed into law by President Obama, would force the disclosure of the identities of corporate political donors. The DISCLOSE Act was proposed by Congressional Democrats in response to the Supreme Court’s controversial Citizens United decision that allows virtually unlimited and anonymous political spending by corporations and other entities (see January 21, 2010). The USCOC, a trade organization that spends heavily on Republican causes, is one of the “independent” organizations that would be most affected by the DISCLOSE Act (see January 21-22, 2010). Donahue, whose organization is lobbying members of Congress against the bill, says that the bill would infringe upon constitutional guarantees of free speech (see January 21, 2010) because it requires donors to state publicly their political positions, which not every organization or individual wishes to do. “The fact that this assault to the First Amendment is being considered as millions are desperately looking for work is a complete outrage,” Donahue says in a statement. “Despite their best efforts, there is no back room dark enough, no partisan motive strong enough, and no cynicism profound enough to barter away Americans’ freedom of speech.” [The Hill, 7/26/2010] Senate Republicans will successfully block the bill from coming to a vote (see July 26-27, 2010).
Senate Democrats are unable to break a filibuster by Senate Republicans that is blocking passage of the DISCLOSE Act.
Act Would Mandate Disclosure of Donors - The DISCLOSE Act—formally the Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act—would overturn many elements of the Supreme Court’s controversial Citizens United decision that allows virtually unlimited and anonymous political spending by corporations and other entities (see January 21, 2010). If passed, it would have created new campaign finance disclosure requirements and made public the names of “super PAC” contributors (see March 26, 2010). Individuals, corporations, labor unions, and tax-exempt charitable organizations would, under the act, report to the Federal Election Commission (FEC) each time they spend $10,000 or more on campaign-related expenditures. Additionally, all outside groups, including “super PACs,” would have to report the names of donors. Moreover, the legislation would provide for so-called “Stand By Your Ad” requirements mandating that super PACs and other outside campaign groups producing political advertisements disclose the top funders in the ad. The CEO or highest-ranking official of an organization would, under the act, have to appear in the ad and officially “approve” the message. [Open Congress, 6/29/2010; OMB Watch, 7/24/2012]
Unbreakable Filibuster - Even public support from President Obama fails to sway enough Republican senators to vote against the filibuster, as did changes made to the bill by sponsor Charles Schumer (D-NY) designed to assuage some of Republicans’ concerns about the bill. The bill has already passed the House, shepherded through under Democratic leadership against Republican opposition. Democrats have a slim majority in the Senate also, but Senate rules allow the minority to mount filibusters that require 60 votes to overcome, and a number of Republicans would need to break from the Republican pack to vote down the filibuster. Additionally, some conservative senators such as Ben Nelson (D-NE) have not publicly stated their support for the bill. One Republican who had previously indicated she might vote for cloture (against the filibuster), Susan Collins (R-ME), dashed Democrats’ final hopes by saying she would not vote for cloture after all. “The bill would provide a clear and unfair advantage to unions while either shutting other organizations out of the election process or subjecting them to onerous reporting requirements that would not apply to unions,” says Collins spokesman Kevin Kelley. “Senator Collins believes that it is ironic that a bill aimed at curtailing special interests in the election process provides so many carve-outs and exemptions that favor some grass-roots organizations over others. This, too, is simply unfair.” Other so-called Republican moderates such as Olympia Snowe (R-ME) and Scott Brown (R-MA) have previously indicated they would not vote for cloture. Ironically, one of the “carve-outs” in the bill Schumer added was on behalf of the far-right National Rifle Association (NRA), an addition that Schumer says was made to placate Republicans. Schumer says that even if the bill does not pass now, attempts to reintroduce it will be made. The DISCLOSE Act “is one of the most important for the future of our democracy, not just for the next six months but for the next six decades,” he says. White House press secretary Robert Gibbs says: “I don’t know what the final vote will be tomorrow, but I know that you—if you had a sliver of Republicans that thought special-interest giving and corporate influence in elections was… part of the problem, then this bill would pass. Now we get to see who in the Senate thinks there’s too much corporate influence and too much special-interest money that dominate our elections and who doesn’t. I don’t know how it could be any clearer than that.” Senate Minority Leader Mitch McConnell (R-KY) retorts: “The DISCLOSE Act seeks to protect unpopular Democrat politicians by silencing their critics and exempting their campaign supporters from an all-out attack on the First Amendment (see January 21, 2010). In the process, the authors of the bill have decided to trade our constitutional rights away in a backroom deal that makes the Cornhusker Kickback look like a model of legislative transparency.” [Politico, 7/26/2010] The “Cornhusker Kickback” McConnell is referencing is a deal struck in late 2009 by Senate Majority Leader Harry Reid (D-NV) to win Nelson’s support for the Democrats’ health care reform package, in which Nebraska, Nelson’s state, would receive 100 percent government financing for an expansion of Medicare. [Las Vegas Sun, 12/20/2009]
Entity Tags: Harry Reid, Federal Election Commission, Charles Schumer, Ben Nelson, Barack Obama, US Supreme Court, US Senate, Susan Collins, Scott Brown, DISCLOSE Act of 2010, Olympia Snowe, Mitch McConnell, National Rifle Association, Robert Gibbs, Kevin Kelley
Timeline Tags: Civil Liberties
US Senate candidate Sharron Angle (R-NV) falsely claims that the Democratically backed DISCLOSE Act, a bill that would have imposed some disclosure regulations on corporate and union campaign financiers (see July 26-27, 2010), was passed into law. Angle is challenging Senate Majority Leader Harry Reid (D-NV). The previous day, Angle posted on Twitter that the DISCLOSE Act’s defeat was “a great victory for the first amendment.” But today, Angle joins conservative talk radio host Heidi Harris to claim that the act is actually in effect and she opposes it. Asked about her position on campaign finance, Angle says: “Well I think that the Supreme Court has really made their decision on this, they found that we have a First Amendment right across the board that was violated by the McCain-Feingold act (see March 27, 2002 and January 21, 2010). And that’s what they threw out, was those violations. The McCain-Feingold Act is still in place. The DISCLOSE Act is still in place. It’s just that certain provisions within that they found to be definitely violating the First Amendment. If we didn’t have the DISCLOSE Act there would be a lot of different things that people wouldn’t be able to find out. And certainly you can go to FEC.gov and see where Harry Reid is getting most of his money from special interests.” [Las Vegas Sun, 7/28/2010; TPMDC, 7/28/2010]
Democrats are aghast at the amount of corporate spending they expect to be used against them in the 2010 elections, according to media reports. The US Chamber of Commerce (see September 20, 2010, September 30, 2010, and October 2010) projects that it will spend $75 million this year, over double its spending of $35 million in 2008, to oppose Democrats running for federal and state office. USCoC officials say that spending could go even higher. Other organizations, such as American Crossroads, a right-wing political group headed by former Bush political advisor Karl Rove (see September 20, 2010 and February 21, 2012), are on track to raise and spend tens of millions, again to fund political activities designed to prevent Democrats from being elected. A report circulating among Democratic Congressional leaders says that some $300 million has been raised for the 2010 campaign, all coming from 15 conservative tax-exempt organizations. Sheila Krumholz of the Center for Responsive Politics says: “A commitment of $300 million from just 15 organizations is a huge amount, putting them in record territory for groups on the right or left. With control of Congress hanging in the balance, this kind of spending could have a major impact.” Chris Van Hollen (D-MD), chairman of the Democratic Congressional Campaign Committee (DCCC), says the amount of corporate funding for Republican political activities is “raising the alarm bell.” The DCCC spent $177 million in all of 2008’s Congressional races. Labor unions and other groups allied with Democrats plan heavy spending of their own, but nothing to compare to conservative corporate funding. The Service Employees International Union (SEIU), for example, plans to spend $44 million on election-related spending this year. Political scientist Anthony J. Corrado Jr. says: “What we are seeing is that major businesses and industries are taking advantage of the recent court ruling and favorable political environment. They are already committing substantially more money than they have in any previous election cycles.” Corrado is referring to the controversial Citizens United Supreme Court decision (see January 21, 2010) that has overturned almost a century’s worth of campaign spending limitations. USCoC officials also point to a 2007 Supreme Court ruling that overturned the ban on political issue advertising by corporations and labor unions close to an election (see June 25, 2007). The Los Angeles Times reports that the heavy corporate fundraising for Republican political interests is driven largely by corporate opposition to the Democrats’ focus on health care reform, and a bill passed in July that established stricter government monitoring and regulation of the financial system. Roger Nicholson of the International Coal Group, a mining company, recently wrote to fellow executives urging them to contribute money to defeat the “fiercely anti-coal Democrats” in Washington, specifically targeting a number of Democrats in Kentucky and West Virginia. Five of the largest health insurers, including Aetna, Cigna, and United HealthCare, are banding together to create and fund a new nonprofit group to help influence elections. The group has not yet been formed, but reports say that it will spend some $20 million to defeat Democrats. [Los Angeles Times, 8/2/2010]
Entity Tags: Karl C. Rove, Anthony J. Corrado Jr., American Crossroads, Aetna, Chris Van Hollen, International Coal Group, Service Employees International Union, US Supreme Court, Los Angeles Times, Roger Nicholson, UnitedHealth Group, Cigna, US Chamber of Commerce, Sheila Krumholz
Timeline Tags: Civil Liberties, 2010 Elections
The federal government imposes a lien on the property of “birther” attorney Orly Taitz, in an attempt to collect the $20,000 she owes in fines imposed by District Court Judge Clay Land (see October 13-16, 2009). Taitz has appealed the fine to the Supreme Court and been denied (see July 7 - August 16, 2010). Columbus, Ohio, lawyer Frank Martin says: “This is a notice that the federal government has put a $20,000 lien plus interest on Orly Taitz. This lien trumps the Internal Revenue Code. This lien has priority over everything else.” If Taitz does not pay the fine, the government can seize her property, Martin says, though Taitz can oppose the collection in court. Taitz says she will pay the fine to avoid “giving the government the satisfaction” of seizing her property and/or her law license, though she intends to file appeals with the Supreme Court to avoid paying. “I will pay the money and I will continue fighting,” she says, and adds that her followers and supporters are donating money to pay the fine. “I’m confident that I will get $20,000 from the public, because people are angry and livid,” she says. “I don’t think anyone has ever seen anything like this in the world. I think the government should start worrying who’s in the White House. We have problems that are much bigger than $20,000 in sanctions.” [Columbus Ledger-Enquirer, 8/9/2010; Columbus Ledger-Enquirer, 8/10/2010] The Supreme Court rejects her appeal; Taitz says she intends to present her complaint to Congress, and even to international courts. Between August 9, 2010 and January 10, 2011, she has collected some $13,000 in donations, she says. [Columbus Ledger-Enquirer, 1/10/2011]
Martha Dean. [Source: Connecticut Political Reporter]Connecticut attorney general candidate Martha Dean, a Republican lawyer, says state governments should be able to ignore federal laws if their lawmakers so choose, even if the US Supreme Court rules the laws constitutional. In some instances, “the Supreme Court is just wrong, so what option does the state have?” Dean says. “They have the option of nullification.” “Nullification” is the idea that the Tenth Amendment gives the states the power to “nullify,” or override, federal law. [The Day, 10/14/2010] The concept gained national notoriety in 1830, when Vice President John C. Calhoun set off the so-called “Nullification Crisis” that almost led to an armed conflict between South Carolina and the rest of the nation, and helped set the stage for the Civil War 30 years later. It came to the fore again in 1956, when segregationists attempted to use the concept to persuade state leaders to ignore the Supreme Court decision, Brown v. Board of Education, that mandated the desegregation of public schools (see March 12, 1956 and After); Arkansas Governor Orval Faubus attempted to invoke “nullification” when he resisted orders to integrate Little Rock public schools, an effort that was shut down by unanimous rulings of the Court. Article 6 of the Constitution states that acts of Congress “shall be the supreme law of the land… anything in the Constitution or laws of any State to the contrary notwithstanding.” Founding father James Madison argued that nullification would “speedily put an end to the Union itself” by allowing federal laws to be freely ignored by states. [Constitution (.org), 8/28/1830; Think Progress, 9/27/2010; The Day, 10/14/2010] Dean says the doctrine of “nullification” is valid and viable, saying: “This is a tool that has existed. It is a tool that isn’t often used. It isn’t often needed.” She says that when state officials such as herself, or elected governors or lawmakers, feel the federal government’s laws surpass Tenth Amendment limitations, then Connecticut and other states should nullify those laws. Dean says her position is controversial only to “the left.” However, the idea has been used for centuries by anti-government activists, most memorably during the run-up to the Civil War and the battle over civil rights for African-Americans in the 1950s and 1960s. Law professor Richard Kay says the idea is entirely invalid. “This was a very plausible argument up until 1865,” Kay says. “But after the Civil War, what was a genuine argument about the nature of the American constitutional system was pretty decisively decided. Since 1865 it’s pretty much a settled matter, with some rare fringe arguments to the contrary. The question of who has the ultimate authority to interpret the Constitution was settled” in favor of the US Supreme Court. The idea that the Constitution is not an ultimately binding authoritative document, but merely an agreement between autonomous states—the core of “nullification”—has always been “very controversial,” Kay notes, and has been rejected by the Supreme Court since 1819. Dean states that the Court’s decisions have been twisted by “liberal law professors,” and rejects the idea that the US Supreme Court is the ultimate arbiter of constitutionality. Her opponent, Democrat George Jepsen, says her idea would lead to chaos. If states can simply refuse to abide by the rulings of the Supreme Court, federal statutes themselves would become unenforceable, he says, and there would be nothing to stop states from seceding altogether. “The point is that we have one Constitution and there needs to be one place that defines what that Constitution means,” Jepsen says. “Under nullification, any state legislature, any state governor could declare that a law is unconstitutional. That would send us onto a course where there would be 50 different unique interpretations of a federal statute. We would cease to be a united nation.” Jepsen calls Dean’s views “extreme.” Dean contends that the idea would not necessarily threaten the Union, and says, “It’s been worked out in the past.” She goes on to say that “I don’t think desegregation was really controversial aside from a few states in the South.” Kay says Dean’s views were quite mainstream in 1842, but not since then. [The Day, 10/14/2010] After being challenged by a constitutional scholar, Dean cites the work of a neo-Confederate segregationist as further support of her position (see October 14, 2010). Jepsen will defeat Dean in the general election, beating back an election-eve attempt by her to challenge his credentials to serve as attorney general. [Hartford Courant, 11/3/2010]
Florida Republican gubernatorial candidate Rick Scott promises that if elected, he will revive the “Florida for Life Act,” which the bill’s original sponsor now terms the “Florida Right to Life Act” (see February 17, 2010). The proposed legislation would ban almost all abortions in Florida, in defiance of the 1973 Supreme Court ruling making abortions legal throughout the US (see January 22, 1973). The announcement comes in an email from State Representative Charles Van Zant (R-FL), who tells his own supporters, “Scott pledged that he would assist in advancing the Florida for Life Act through both Florida’s House and Senate.” Van Zant tells voters to cast their votes for Scott in light of the candidate’s active support for anti-abortion legislation. Scott’s campaign does not directly confirm the email’s accuracy, but says Scott’s anti-abortion, “pro-life” position is clear. Democratic gubernatorial candidate Alex Sink says she is staunchly pro-choice, and would not support such a bill. Attorney John Stemberger, president of the Florida Family Policy Council, says he likes the bill, but believes the Florida Supreme Court would strike it down if it became law. [Orlando Sun-Sentinel, 10/15/2010; Sarasota Herald-Tribune, 10/15/2010] In November 2010, Scott will win the governor’s seat. [CBS News, 11/3/2010]
Democrats in Congress are contemplating using the Constitutional amendment process to overturn the controversial Citizens United ruling by the Supreme Court that allows unlimited corporate spending on elections (see January 21, 2010). A new poll from Public Polling Policy as commissioned by the Progressive Change Campaign Committee (PCCC) finds that a plurality of voters would support such an amendment. Forty-six percent of voters surveyed agreed that “Congress should consider drastic measures such as a Constitutional amendment overturning the recent Supreme Court decision allowing unlimited corporate spending in elections.” Thirty-six percent disagreed, and 18 percent had no opinion. Such an amendment would likely fail in Congress, as it would require a two-thirds majority in both chambers and then ratification by three-quarters of the states. Representative Donna Edwards (D-MD) wrote such an amendment, in draft form, the evening that the Citizens United decision was announced. Her proposed amendment reads: “The sovereign right of the people to govern being essential to a free democracy, Congress and the States may regulate the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity. Nothing contained in this Article shall be construed to abridge the freedom of the press.” She says that there have been times in American history that such amendments catch the public attention and move quickly into law. “The process is very rigorous, and it should be,” she says. “But there have been plenty of examples of amendments to the Constitution that have happened, actually, with fairly rapid-fire when they catch on.” She adds: “I really concluded that the Supreme Court actually put the challenge out to us, here in the Congress. They said, you know, you could make a judgment that this is not really good for the system, but the fact is that the Constitution doesn’t allow you to regulate this. Congress, you have no—the Court told us directly—Congress, you have no authority to regulate. And when the Court says that so directly, it only leaves us one choice.” Two prominent Senate Democrats, John Kerry (D-MA) and Max Baucus (D-MT), support the amendment. A Baucus spokesperson says, “Max is always willing to work with anyone toward the common goal of making sure Montanans’ voices don’t get drowned out by out-of-control corporate campaign donations.” PCCC co-founder Adam Green says: “It’s time to stop thinking small-bore. The solution to Citizens United is not merely disclosure, it’s to overturn Citizens United—and even last November’s Republican-skewed electorate agrees.” Edwards says that Democrats should embrace the concept that the Constitution is a political ground worth fighting on. “A lot of progressives are not accustomed to using the mechanisms of the Constitution,” she says. “The right has used—has tried to do that an awful lot of times on a whole range of different things in state legislatures and across the board. And as progressives, we’re not accustomed to doing that, and this is one instance, though, where the populist demand is there, and our energy and our policy has to match that demand and a Constitutional amendment does that.” [Huffington Post, 11/23/2010]
Receive weekly email updates summarizing what contributors have added to the History Commons database
Developing and maintaining this site is very labor intensive. If you find it useful, please give us a hand and donate what you can.
If you would like to help us with this effort, please contact us. We need help with programming (Java, JDO, mysql, and xml), design, networking, and publicity. If you want to contribute information to this site, click the register link at the top of the page, and start contributing.