Sotomayor Fails To Impress In Campaign Finance Challenge

In the first case argued by Solicitor General Elena Kagan, before a Supreme Court bench containing Sonia Sotomayor for the first time, both failed to impress. Kagan, representing the government, had the job of defending the federal laws that prohibit corporations and labor unions from funding their own campaign ads. The law was being challenged by a private corporation, Citizens United, that produced a movie about Hillary Clinton during the presidential primary season last year.

Justice Sotomayor expressed some concern that if the Court decided to strike down the law, that that would cut off the democratic process, preventing the federal government and states from experimenting with different regulator regimes. Her question is one that applies to any Supreme Court decision that applies constitutional rights, and Floyd Abrams, attorney for Senator Mitch McConnell (R-Ky.), easily responded that the First Amendment trumped those kinds of concerns.

Lawyers for Citizens United argued that there was no real difference between a corporation and an individual: both have First Amendment rights to speech, especially political speech, that the government cannot restrict unless it can show it has a compelling reason. The government was in an awkward position: in addition to having to backpedal from the March 24 Court session in which the government argued it could ban books if it wanted to, Solicitor General Kagan urged the Court not overturn the 1990 precedent of Austin v. Michigan Chamber of Commerce by offering a different rationale the Court could have used in that case but didn’t.

Kagan’s arguments generally fell flat, with the support for the campaign finance laws coming from Justices Stevens, Ginsberg, and Breyer, each giving his own reasons. Justice Sotomayor, only asking a couple of questions, seemed to support the laws for practical reasons, suggesting that the lower courts should reexamine this issue more before the Supreme Court decides.

Justices Roberts, Scalia, Kennedy, and Alito pushed the regulation’s advocates pointing out that the law bars any corporation from paying for ads, even small businesses completely owned by a single person. Kagan could respond only by pointing out the FEC has never gone after a small business for making an ad, prompting Justice Scalia to retort, “We don’t put our First Amendment rights in the hands of FEC bureaucrats.”

Justice Thomas, as usual, asked no questions. In the past he has been the Court’s harshest critic of campaign finance laws like these.

The Supreme Court is in recess until October 5, at which time its decision will likely be announced.

Senators, Latino Groups Celebrate Near-Certain Confirmation Of Sotomayor

By Courtney Ann Jackson-Talk Radio News Service

Civil rights leaders and Senators joined in a rally on Capitol Hill Wednesday to voice their support for Supreme Court nominee Sonia Sotomayor's confirmation.

The familiar phrase from President Obama's campaign, "yes we can," was heard both in English and Spanish at the rally, which was hosted by the Leadership Conference on Civil Rights (LCCR) and the National Council of La Raza (NCLR). The atmosphere was extremely celebratory as the crowd loudly responded with cheers each time the name of the historic nominee was mentioned.

Sen. Charles Schumer (D-N.Y.) was one of four Senators who spoke at the rally. "There are three words that sum up this nomination: It is time," Schumer declared.

Sen. Ben Cardin (D-Md.), Sen. Sheldon Whitehouse (D-R.I.), and Sen. Robert Menendez (D-N.J.) also showed their support, adding that they were not pleased with the overall Republican response to the nomination.

"Let us hope that as history looks back on this day, it notes the historic occasion of the confirmation of Justice Sotomayor and ...not the Republicans' strange and strained efforts to impose right-wing political orthodoxy on our courts and judges," said Whitehouse.

Sen. Menendez spoke about the response of the Hispanic community to Sotomayor nomination, but also mentioned the appreciation of the few Republican Senators who have said they will vote yes for her confirmation.

"When she raises her hand and takes that oath of office, the Supreme Court will be better, the nation will be better, and we will have fulfilled our promise as a country," said Menendez.

Civil rights organizations including the Hispanic Federation, the Alliance for Justice, the NAACP and others were also present in support of Sotomayor. Many people held signs with the slogan "I stand with Sotomayor," and at one point, a chant of, "What do we want?-Sonia-When do we want it?-Now," erupted.

Republicans Postpone Sotomayor Vote

By Matthew S. Schwartz
Legal Affairs Correspondent - Talk Radio News Service

The confirmation of Supreme Court nominee Sonia Sotomayor may be a sure thing, but Republicans on the Senate Judiciary Committee have requested a one-week delay in the committee vote.

Chairman Sen. Patrick Leahy (D-Vt.) said he was "disappointed" by the delay, but "they have a right to put it over." Republicans informed him over the weekend of their intent to delay the vote to next Tuesday. If the committee approves her, the vote will go to the full Senate floor.

Leahy stressed the importance of confirming Sotomayor quickly, as the Supreme Court reconvenes early next term to hear a case on the constitutionality of the McCain-Feingold campaign finance bill. "I hope that once she is passed out of this committee, there will be no delay on the floor, because she will have a very, very few weeks after she is confirmed to move to Washington" and prepare for the case, he said. "Delay would not help either her or the Supreme Court."

Sen. Jeff Sessions (R-Al.) said that even with the delay, "Confirmation, if it occurs, will occur sooner than even John Roberts." Chief Justice Roberts began his Judiciary Committee hearings on Sept. 12, 2005, and was confirmed by the full Senate on Sept. 29.

Just 10 members of the 19-member Judiciary Committee showed up Tuesday, the minimum needed for committee business to take place.

Leahy told reporters he doesn't know how long the floor debate will last, but it should be quick because senators should all know how they plan to vote by the time the official debate starts.

The Sotomayor Hearing Saga

The Senate judiciary hearing room in the Hart building is a monument to power in our democracy.

In a series of seats fashioned like a horseshoe, senators sit with their aides behind them. Each seat has a microphone, and the Democratic chair sits in the middle with the Republican ranking senator sitting beside the chair. Next come the still photographers, then the witness table. Behind the witness sits their family members and sometimes their advisers. In back of them are a few more rows of seats and then long tables for the press to write longhand or type directly into their computers. In back of them sit the general public.

Unlike the older Senate hearing rooms, the Hart building has special balcony-type places for the radio and television journalists so they can do their reporting while looking down on the hearing room. With all of these delicately designed ways of holding hearings you would expect more from our democracy. In fact, we got a whole lot less this week.

I am referring to the Sotomayor hearings for Supreme Court justice. This is something that the American public has been part of for years, with much of the hearing the time being boring beyond comprehension. Sure there was the Clarence Thomas hearings and Anita Hill, but, in general, the hearings are a snore. This week was no exception to the snore rule.

Our Constitution provides for "advice and consent" by the Senate (Article II, Section 2, Paragraph 2) of Supreme Court judges. This provision was a compromise between the founders who wanted a strong federal government and those who wanted a stronger legislative branch. It has become a place to address the folks at home and enrich the political platform upon which many senators operate. In fact, if you were going to teach high school civics, it would be shameful to show a video tape of the "questions" that were asked by many senators. The Republicans used the hearings this week as place to make the Democrats agenda look radical, and the Democrats used their questions as a kiss up opportunity. Our Supreme Court reporter, Jay Tamboli, a lawyer by training, just shook his head at the missed opportunity for having a real discussion about law and justice.

I was in the hearing room during the last day of the Sotomayor testimony and was pretty horrified that intelligent people were asking such dumb questions. Much of the concern from the Republican senators focused on personal experience of a judge and if it should influence decisions from the bench. They acted as if it never happens in true justice. It was hard to sit there and not laugh. A grade school child could tell you that the Supreme Court is filled with ideologies that impact on final decisions. If they had only had some basic interviewing skills, the Republican senators would have asked more probing questions that were designed to really get information. They could have asked questions like, "Tell me a time that you made a decision based on law but that you personally disagreed with the outcome." Instead they harped time and time again to her speeches which they felt showed she would be biased in her judgments.

Then JAG military lawyer Sen. Lindsey Graham used his time to deliver a long speech about Guantanamo justice and why people who don't play by the rules should get more trial rights than those who do. He was referring to captured fighters who do not wear a uniform of country and thereby do not fully come under the Geneva Conventions. After several minutes of Sen. Graham's monologue, I began to wonder where is the question and what does he expect Judge Sotomayer to answer.

The point is that no one knows what a judge will do when they get on the court. Ever since Ruth Bader Ginsburg played it safe by not commenting on "hypothetical" cases, no one has been able to make headway with a potential judge. They can hide behind the fact that something might come up before the court in the future.

So, what can be done? There is no law that says there needs to be four days of hearings. If they know they have the votes to confirm, then they should hold shorter hearings and the chairman should limit it to real questions and stop the speeches.

They should put all the pro and con letters up on the Internet and let the American public call their senators with their comments. Senators should stop playing to their base with hostile or kiss-up questions. Everyone knows they accomplish nothing. Finally, we should treat this process as something that allows us to discuss important questions of the day, which could include the influence of foreign law on ours, the impact of current science on legal decisions etc. We missed an opportunity to make these hearings relevant and interesting. They turned out to be boring and dull, a missed opportunity to engage Americans in a meaningful and important process.

Supreme Court Journalists Hold Mixed Opinions On Sotomayor

By Aaron Richardson-Talk Radio News Service

Following the confirmation hearings of Judge Sonia Sotomayor, opinion on what kind of justice Sotomayor will be continues to seem mixed.

NPR Senior Correspondent Juan Williams believes that Sotomayor will pursue a squarely moderate course.

“Judge, and potentially Justice, Sotomayor will try to adhere to as much as she can to stay within the mainstream and hold to this notion that she does believe in precedent,” Williams said Friday during a panel discussion with a number of journalists who specialize in Supreme Court proceedings.

However, Washington Times columnist Quin Hillyer fears that Sotomayor will buck the responsibilities of the bench and adopt an activist role.

“I think her record shouts out advocate and does not even whisper judge. I fear that her speeches really indicate a crusading mentality,” Hillyer said.

According to veteran Supreme Court journalist Lyle Denniston, Sotomayor may have a hard time replacing departing Associate Justice David Souter.

“I do not think she is as smart as Justice Souter was and to my mind I have covered a lot of smart people on the court but no one since [Former Associate Justice appointed by Franklin Delano Roosevelt] Felix Frankfurter has the intelligence that David Souter had,” Denniston said.