Rick Hasen: For what it's worth, I agree with James. I think Linda understates
the potential of the opinion to change the role of money in judicial
elections. It is true Justice Kennedy talks a lot about this being an
extreme case, but the standard is vague enough (as C.J. Roberts' 40
questions proves) that this could take on a life of its own in the
lower courts. And in the meantime, those who would throw big money
around elections might decide it is risky to do so. In any event, she
expressed a certainty I don's have.
Linda Greenhouse: I sense a bit of "Linda, how could you" from my friends in the progressive community from my failure to salute the outcome in Caperton.
I didn't mean to put words in former Chief Justice Phillips' mouth.
Yes, he told Tony Mauro that the decision established "a principle that
is really important." But here' -- what he also said in that interview
that led me to characterize his views as I did -- his views on the
decision itself, let me emphasize, not on the principle:
He said that as he read the holding, it was limited to the following:
Due process is violated ONLY (my emphasis) when: "(1) a person (2) with
a personal stake in a particular case (3) had a significant (4) and
disproportionate influence (5) in placing the judge on the case ... (6)
when the case was pending or imminent." He went on to conclude: "Given
how narrow that holding is, I'm not sure Caperton will ever be direct
precedent for another recusal."
That's what the man (much more expert that I on this issue) actually
said, and that's what my post reflected. My personal opinion is that if
that's all there is, or all that a majority can manage to extract from
the extraordinary facts, I'm not sure this case was worth the effort.
Linda Greenhouse's analysis, posted by Rick
yesterday, is effectively limited so as to exclude real-world
implications apart from a decision being used as direct, dispositive
precedent. Particularly on the score of judicial disqualification,
where the vast, vast majority of the lifting is done by the rules,
which are now plainly reinforced by a floor of constitutional
magnitude, such a scope of analysis is unduly confined. The narrow view
that for a decision to be effective or meaningful it must be capable of
being immediately operationalized as dispositive precedent it itself
and in a wide class of cases is myopic.
That said, Greenhouse
makes a surprising error in both accuracy and judgment when she
attributes her own views to Texas Chief Justice Tom Phillips. The last
sentence of Greenhouse's post states that Phillips "suggests that very
little will come of Caperton in the end." She is simply wrong to
attribute that view to Phillips, who categorically does not hold it.
Phillips
served, along with Roy Schotland and George Patton, as counsel on the
Conference of Chief Justices amicus brief. The very fact that the
Conference filed a brief in the case is telling. It was the first time
in the Conference's history as an organized entity that it filed in
review of a state rather than federal court judgment, i.e., in review
of one of its own. The CCJ is on the front lines, a fact not lost on
the Court which discussed the brief, which while formally in support of
neither side, was clearly and indisputably supportive of Petitioners'
position, a theme repeatedly referenced during oral argument.
The
CCJ's brief said, in essence two things: (1) that they believed due
process could be jeopardized by the very type of outlier level of
spending and circumstances in Caperton, AND (2) that if the Court ruled
- as it ultimately did - without drawing a bright line, then they were
well prepared to deal with that challenge.
So far the facts are
already bearing that second prong out. Consider just briefly, the
following facts rather than characterizations. Since Caperton, Nevada,
Wisconsin, Michigan, West Virginia, Ohio, and Washington have already
formed commissions and/or have opened up comment periods and/or taken
up or accelerated reviews of their existing recusal practices. That's
meaningless? Hardly. And it is exactly what the "well-meaning folks"
that her post so casually dismisses ---including people like myself and
Phillips and Schotland were seeking. I can tell you that the narrow,
fact-based decision is exactly what I, like Petitioners, believed was
the best case scenario all along, and we framed our briefs accordingly.
If anyone thought the case "promised more" than that, their belief was
founded in their own projection, rather than in something promised by
those close to the case.
Likewise, it would have been
inappropriate for the Court to draw the bright lines that the
dissenters excoriate the majority for failing to draw. Chief Justice
Roberts's questions are well-taken but they are directed at the
majority rather than the states, who should and will address them in
the first instance if at all. Prospectively, it is also worth noting
the backstop aspect of this case. If the Court had done nothing here,
then the questions in dissent could just as easily be flipped. E.g,,
What about $10 million? $100 million? Is that enough? Etc... So the
slippery slope arguments and the floodgates arguments provide for nice
sassy copy, but ultimately they do little substantive lifting.
Phillips,
like the 27 former state supreme court justices from around the country
who supported the Petitioners, is widely on record as celebrating the
decision AND as recognizing its import, including in the Tony Mauro
interview referenced, but apparently only lightly read, by Greenhouse.
Phillips is hardly new to these issues, having worked tirelessly on
them in Texas; and having written about them widely, including
authoring the foreword to a Brennan Center monograph on recusal last year. For just a brief sampling of Phillips actual views, as
opposed to those wrongly attributed to him, consider the following:
On the day of the decision, Nina Totenberg noted here: "Phillips said his organization is pleased that the Supreme Court has
drawn a line in the sand but left the states with flexibility. 'The
Court has certainly invited the states to explore whether their more
concrete rules on the state level that would exceed the Due Process
floor are needed.'"
Likewise, in the Tony Mauro's insightful
interview, in which Phillips rightly points out the narrowness of the
constitutionally-dispositive aspect of Caperton, here is a short
sampling of what Phillips actually says as to what may come of the case:
Phillips:
"Caperton established a principle that is really important: There are
constitutional concerns with a judge sitting in judgment of a case
where a party is a significant donor. At some point, the support
becomes so substantial and so overwhelming that due process requires
the judge to step aside, even if neither the donor not the judge did
anything illegal or even unethical. Until now, that was an unanswered
issue. That's the most important thing in the case."
Mauro: "What does the decision say about the difference between judicial elections and other elections?"
Phillips:
"That's another important principle in the case. No one would say that
a Senator couldn't vote on armed services appropriations merely because
the defense industry had spent large sums in connection with the
senator's campaign. And yet that is precisely what the Court held with
respect to a state judge. The opinion affirmed that, even if judges are
selected in precisely the same as political officials, they have a
fundamentally different role in government that raises concerns that
are of constitutional magnitude."
And as for the floodgates
arguments, Phillips makes the very correct point that Caperton may lead
to an increase in rules-based recusal motions, but that given the
current state of affairs in judicial elections, that would be a very
good thing:
Phillips: "The majority opinion recognized, even
urges, states to pass recusal rules that are more rigorous than the due
process floor in order to ensure the appearance and reality of
impartial judges. The Caperton case may cause more of those rules-based
motions to be filed, and state courts may have to grapple with the
types of problems that the Chief Justice raised. And, on the whole, it
will be good for these rather murky questions to be fleshed out. And,
moreover, it will be good to have a heightened interest in what is
required to have fair and impartial justices on the bench."
Some
hope states will abandon elections in light of the decision. Others,
like Chief Justice Roberts, fear that the floodgates of Caperton claims
will open. But as Eliza Carney's excellent recent columnstates: "In fact, both scenarios miss the mark. The ruling's more
likely outcome is that state supreme courts will establish and enforce
clearer recusal rules for judges who may face conflicts of interest,
guidelines that are long overdue."
As noted above, and
as previously noted on this list by Roy, significant progress is
already being made in that direction. Whether one thinks such
consequences are or are not positive and meaningful is a matter of
divergent opinion on this list and elsewhere. To that end, it's worth
noting that just 15 months ago, in this debate sponsored by the Federalist Society, Jim Bopp, in high dudgeon,
characterized the very notion of ANY campaign expenditure-based due
process floor as "liberal New York City extremism." But we now know
that it's the law. And suffice it to say that when, among others,
Justice Kennedy, the CCJ, 27 former state supreme court justices,
Intel, Wal-Mart, Pepsi, Lockheed Martin, etc...look "extreme" from
where one sits, it might be time for some re-calibration. (Or at least
it might be time to tone down the dudgeon). It might also be time for
some serious consideration of the unique countervailing interests in
judicial elections.
On that score, i.e., on the far more
consequential level of rules-based disqualification, indeed, even Chief
Justice Roberts's and Justice Scalia's dissents reflect the need for
greater vigilance than displayed by Justice Benjamin (see CJ Roberts:
"States are, of course free to adopt broader recusal rules than the
Constitution requires..."; See Justice Scalia: [S]hould judges
sometimes recuse even where the clear commands of our prior due process
law do not require it? Undoubtedly.")
But whatever
one's views as to the import of Caperton, this much should be clear:
Tom Phillips's view is that it is quite important. Indeed, in his own
actual words, he states that Caperton might even "spur states to
consider whether our 19th century method of selecting judges works well
in the 21st century. The old friends and neighbors method of selcting a
judge has been replaced by the need for expensive media campaigns...and
these huge independent attack ads that so damage the credibility of our
justice system."
Agree or disagree as you wish. But the
actual quotes from Phillips, as opposed to the characterizations,
reflect his actual views. Count me in the camp of agreeing with him,
with Ted Olson, with Roy, and with those other "well-meaning folks."
Last week, the Supreme Court avoided a constitutional challenge to a critical component of the Voting Rights Act by a small utility district in Austin, Texas in the case NAMUDNO v. Holder. This ruling is an important one because it rightly left the Voting Rights Act, probably the nation's most successful piece of civil rights legislation, fully intact and capable of performing the important duties with which it was tasked, namely that of fighting racial discrimination in voting.
As the Court recognized, the Voting Rights Act is responsible for much of the progress we have achieved towards equality in voting. Literacy tests, grandfather clauses, "good character tests"-all were made illegal by the Voting Rights Act. Other provisions, like the one at issue in the NAMUDNO case, required that certain jurisdictions, those which have had demonstrable histories of discrimination in voting, seek "pre-clearance" or certification in advance from the Department of Justice or a court that certain proposed changes to their election systems would not have a negative effect on the voting rights of racial and ethnic minorities.
The Voting Rights Act, while important for our country's future, also plays an important role in our past because the Voting Rights Act is our greatest legacy to the 15th Amendment. At the beginning of 1867, a few years before the 15th Amendment was passed and ratified, there were no federal laws guaranteeing the voting rights of any African-American males. But before 1868 ended, all that had changed. In 1867, the Reconstruction Congress passed legislation enfranchising African-American males in the District of Columbia, overriding a presidential veto in opposition. Within the same month, Congress overrode a second presidential veto and passed legislation giving African-American men the right to vote in other geographic areas subject to federal control. A few weeks later, Congress conditioned the Territory of Nebraska's admission into the Union upon abolish all racial qualifications on voting. Most significantly, in the First Reconstruction Act, Congress refused to re-admit the former Confederate states into the Union unless the states amended their constitutions to allow voting by male citizens "of whatever race, color, or previous condition" and required that these states not amend their constitutions in the future to deprive any citizen or class of citizens the right to vote.
So before the 15th Amendment was passed, Congress had already formally enfranchised African Americans in the former confederacy and the federally-controlled territories. But the Reconstruction Congress knew that those acts were not sufficient for a right as fundamental as the right to vote. A constitutional amendment was needed to make sure the gains that had been achieved were not rolled back by circumvention (such as private or state-sanctioned violence or intimidation) or future electoral majorities with discriminatory inclinations. And so, the Reconstruction Congress passed, and the states ratified a 15th Amendment designed to prevent backsliding and to ensure a continuing role for Congress in the eradication or racism in voting. It was broad in its scope in that it gave Congress wide latitude, but narrow in its focus in that it covered only where racial discrimination intersected with voting. The 15th Amendment's opponents balked about the shift the Amendment created in the relationship between federal and state governments by transferring to the federal government primary responsibility for electoral qualifications related to race, an area that had been once left exclusively to the states, but the Amendment's proponents stood firm that the Amendment had to bestow upon Congress the power to combat racism in voting in the future. After the Amendment passed, Congress utilized this power to pass Enforcement Acts after the 15th Amendment that were broad and expansive, and an anti-Klu Klux Klan Act -- all reflecting Congress' intention that its powers be at their zenith when it was protecting racial minorities from discrimination in voting.
Congress' broad and bold actions were squashed by the Supreme Court, which issued rulings emasculating the strength of the Enforcement Acts. For almost 75 years, the nation slipped into Jim Crow. We might still be there if Congress had not acted again under its broad 15th Amendment powers to enact the Voting Rights Act of 1965. The Voting Rights Act seeks to protect, as did the 15th Amendment, current exercises of the right to vote, but also like the 15th Amendment, it seeks to ensure that voting rights are not curtailed by future state behavior. This is done in large part by the "pre-clearance" provisions at issue in the NAMUDNO case, which does not allow proposed state changes to their election practices to be implemented until it can be certified that the change will not have a negative effect on the voting strength of a racial group.
The Voting Rights Act effectively revived Congress' role in combating racism in voting from the dormancy it was cowed into by the Supreme Court. And Congress amended and reauthorized the Act. Most recently, in 2006, after reviewing voluminous evidence of present-day discrimination and holding extensive hearings, Congress made the near-unanimous policy determination that there still remained work for the Voting Rights Act and its pre-clearance provisions to do and that the Act should be reauthorized.
The Act is a modern-day rejection by our country of racism in voting, and I for one am proud that our elected representatives made such a statement.
In the case, the utility district, named the Northwest Austin Municipal Utility District (and from where the acronym "NAMUDNO" comes from in the case name), argued that it should be allowed to seek a statutory exemption from the Act's pre-clearance provisions that affected the entirety of the state of Texas. NAMUDNO further argued that if it were not entitled to the statutory exemption, then the Voting Rights Act must be struck down as an unconstitutional intrusion of Congressional power into state sovereignty.
Eight Justices concluded that NAMUDNO should be allowed to "bail-out"-the term used for a jurisdiction which seeks exemption from the pre-clearance provisions - leaving Justice Thomas standing alone in his argument that the Court should have struck down the relevant sections of the Voting Rights Act today.
There is no doubt that the decision is a victory for voting rights, especially because the activists who recruited NAMUDNO for the challenge sought wholesale destruction of the Act's pre-clearance provisions. But the decision was what lawyers would call a "narrow" ruling. Because a majority of Justice concluded that NAMUDNO was entitled to the exemption, the Court did not need to decide whether the pre-clearance provisions were a constitutional exercise of Congressional power. While the decision does not foreclose future challenges to the constitutionality of the Act, if and when they come, the Court should remember that the 15th Amendment amply and clearly supports giving Congress much deference in its determinations as to how to best combat race discrimination in voting and the power to take the steps to effectuate that determination.
Arguing for judges with exposure to America’s diverse mores, NAACP LDF’s John Payton reminded an audience of lawyers, professors and students at NYU School of Law of the historical and racial context of the current Supreme Court pick.
John Payton, President and Director-Counsel of the NAACP Legal Defense Fund appeared at a panel discussion hosted by the Brennan Center entitled, "Umpire? Empathy? What Do We Want in a Supreme Court Justice?” on Monday, June 15, 2009 along with Burt Neuborne, Stanley Fish, and Dahlia Lithwick.
Eschewing an endorsement of “empathy” per se as criteria for good judging, Payton urged that what a good judge does is try to imagine what it would be like to be in someone else’s shoes in order to come to a just decision. As an example of the dangers of thinking of the law as neutral, Payton quoted from Professor Herbert Wechsler’s famous Holmes Lecture at Harvard Law School. Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959):
In the days when I was joined with [African American Attorney] Charles H. Houston in a litigation in the Supreme Court, before the present building was constructed [in 1935], he did not suffer more than I in knowing that we had to go to Union Station to lunch together during the recess [since blacks were not allowed in the Capitol dining room].
Much has been made this past week about a brief dissenting opinion by Judge Sonia Sotomayor in the 2006 Second Circuit decision in Hayden v. Pataki, a case that challenged New York's felony disenfranchisement law. Although most of the rhetoric has sought to make the issue of restoring voting rights to people who have been in prison seem like an extreme notion, that is simply not the case. In fact, there is a growing national consensus that criminal disenfranchisement laws are a relic of the past that only weaken our democracy and serve no legitimate law enforcement purpose.
Among other things, plaintiffs in Hayden argued that New York's policy of denying the right to vote to people who have been to prison disproportionately deprived African- American and Latino citizens of the right to vote in violation of Section 2 of the Voting Rights Act (VRA). Section 2 provides:
In a post on The Hill Blog, The
Incumbency Problem Has Everything to do with Money, I wrote that the
availability of low contribution limits and public financing help challengers
in elections against incumbents. Professor
Hayward replied here, and was
somewhat dismissive of the Brennan
Center research inspired
by Randall v. Sorrell that proves
these points.
After paraphrasing Prof. Hayward's statements at our
recent conference for the blog, I checked the transcript. Here's what Prof. Hayward said, "So ask
yourselves, and this is my closing thought: as passionate reformers, how much
of what you dislike about political funding is a problem of incumbency rather
than a problem of money?" Given this, I
do not think it was misleading to write: "panelist Professor Allison Hayward, a
skeptic of campaign finance reform, asked whether reformers should really focus
more on incumbency than they do on limits on money in politics."
As Court watchers eagerly await the latest decision on campaign finance in a case called Citizens United, new research from the Brennan Center indicates that the Roberts’ Court’s first campaign finance decision three years ago, Randall v. Sorrell, suffered from a key empirical flaw. In that case, the Court wrongly assumed that low contribution limits hurt challengers and entrenched incumbents.
This misperception is still widely shared. At the Brennan Center’s recent conference, “New Horizons for Reform,” panelist Professor Allison Hayward, a skeptic of campaign finance reform, asked whether reformers should really focus more on incumbency than they do on limits on money in politics. This is a false dichotomy. The Brennan Center has long worked to address both money in politics and the strength of incumbency. Our work on campaign finance reform, redistricting and voting rights is intended to assure that the basic structures of democracy are geared to truly capture the voters’ collective will, so that those incumbents who no longer serve the public will face a realistic prospect of electoral defeat.
The banking industry, recently described by Senator Dick Durbin (D-IL) as the “most powerful lobby on Capitol Hill,” has maintained its hold over Congress even after causing the current financial meltdown. While discussing the mortgage crisis on Bill Moyers’ Journal on May 8, Senator Durbin, co-sponsor of the Fair Elections Now Act (FENA), stated that the “way we finance our campaigns” lies at the heart of the current crisis. His solution is FENA, a bill that will provide public financing to congressional candidates.
By giving congressional candidates the option to run their campaigns with money free of any strings attached, FENA ensures that politicians will not make legislative decisions out of a sense of indebtedness to large contributors but will vote their conscience. Senator Durbin declared that now is the “time for us to move to public financing, for the good of the country,” and it certainly seems that the potent combination of economic collapse and political challenges means that there is no time like the present to fully consider how to change business as usual in Washington.
At a press event on Monday May 11, Representative Larson (D-CT), co-sponsor of the House version of FENA, stated that due to the bill’s importance, he hopes to push the bill through the House before the end of the summer. The House version of FENA, co-sponsored by Rep. Larson (D-CT) and Rep. Walter Jones (R-NC), now has 31 co-sponsors.
0 comments | Permalink