Commentary Magazine


Topic: campaign-finance-reform law

The Justices Should Stay Home

Justice Clarence Thomas, appearing at a Florida law school, made some interesting remarks about the Supreme Court’s decision striking down portions of the McCain-Feingold campaign-finance-reform law. The New York Times dutifully reports his jab, “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.” And there was more:

“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 said. “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?” Justice Thomas asked, suggesting that the answer must be the same.

Asked about his attitude toward the two decisions overruled in Citizens United, he said, “If it’s wrong, the ultimate precedent is the Constitution.”

That’s as compelling and succinct an argument as you will get in defense of constitutional principles and the sanctity of political speech. Most interesting, perhaps, were his remarks on attending the State of the Union:

“I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there,” he said, adding that “there’s a lot that you don’t hear on TV — the catcalls, the whooping and hollering and under-the-breath comments.”

“One of the consequences,” he added in an apparent reference to last week’s address, “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.”

Regardless of how one feels about the Citizens United v. FEC case or Justice Sam Alito’s “not true” retort, it’s hard to disagree with that logic. There is good reason for the justices to stop showing up. This is a partisan affair in which the president lays out a political agenda and, at least in this case, swipes at the other branches of government. Why should judges feel obligated to sit there? Why would they even feel comfortable? And really, there is no purpose to be served by the judges sitting mutely (or not) as the president solicits cheers for health care or incurs boos for a budget freeze. These are justices and not political players, after all, although the line between political apparatchiks and judges is becoming unfortunately blurry these days.

The ABA Canon 4 of judicial ethics (which is the model for many state-bar ethics rules) states: “A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.” Well, the State of the Union is not exactly political “activity” in the way that a campaign rally is, but it’s close and becomes more “interactive” each year. If the purpose of that rule is to maintain the divide between judges and politics and to avoid ensnaring judges in partisan brawls, then a good place to start would be for justices to follow Justice Thomas’s guidance. Really, they can watch it on TV.

Justice Clarence Thomas, appearing at a Florida law school, made some interesting remarks about the Supreme Court’s decision striking down portions of the McCain-Feingold campaign-finance-reform law. The New York Times dutifully reports his jab, “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.” And there was more:

“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 said. “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?” Justice Thomas asked, suggesting that the answer must be the same.

Asked about his attitude toward the two decisions overruled in Citizens United, he said, “If it’s wrong, the ultimate precedent is the Constitution.”

That’s as compelling and succinct an argument as you will get in defense of constitutional principles and the sanctity of political speech. Most interesting, perhaps, were his remarks on attending the State of the Union:

“I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there,” he said, adding that “there’s a lot that you don’t hear on TV — the catcalls, the whooping and hollering and under-the-breath comments.”

“One of the consequences,” he added in an apparent reference to last week’s address, “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.”

Regardless of how one feels about the Citizens United v. FEC case or Justice Sam Alito’s “not true” retort, it’s hard to disagree with that logic. There is good reason for the justices to stop showing up. This is a partisan affair in which the president lays out a political agenda and, at least in this case, swipes at the other branches of government. Why should judges feel obligated to sit there? Why would they even feel comfortable? And really, there is no purpose to be served by the judges sitting mutely (or not) as the president solicits cheers for health care or incurs boos for a budget freeze. These are justices and not political players, after all, although the line between political apparatchiks and judges is becoming unfortunately blurry these days.

The ABA Canon 4 of judicial ethics (which is the model for many state-bar ethics rules) states: “A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.” Well, the State of the Union is not exactly political “activity” in the way that a campaign rally is, but it’s close and becomes more “interactive” each year. If the purpose of that rule is to maintain the divide between judges and politics and to avoid ensnaring judges in partisan brawls, then a good place to start would be for justices to follow Justice Thomas’s guidance. Really, they can watch it on TV.

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Flotsam and Jetsam

Ruth Marcus explains: “So can a chastened Obama regain the lost sense of excitement and opportunity? Eventually, perhaps, but never entirely. The second time is never as thrilling.” Especially when the thrill was based on cotton-candy rhetoric and a blank slate onto which Obama told us we were projecting our hopes and dreams. If there is no there there, then the thrill is not likely to return.

Michael Barone says that if the election were held today, it would be worse for the Democrats than it was 1994 or 2002. He calls it “the makings of an epic party disaster.”

Charles Krauthammer on Obama and the KSM trial: “The president is not going to admit error. He never does. He does in the abstract, but he will never admit he actually makes a human error on anything. So he won’t on this. But he knows what’s going to happen, which is the Congress will rebel on this and it will pull the funding, [and] get him off the hook. And the issue [will] end up behind him even though he doesn’t do it himself.” Noting he never mentioned terrorism in the SOTU, Krauthammer adds: “In fact, because his two decisions — the KSM trial in Manhattan and the granting of Miranda rights to the guy who tried to blow up the airplane — are indefensible.”

Matt Continetti points out that it takes Speaker Nancy Pelosi to make Sen. Carl Levin look wise on national security. Levin says of Pelosi’s idea to apply Obama’s freeze to defense spending: “That’s kind of hard to do in the middle of a war.” But maybe if we hop over the Pentagon fence. And then pole vault in. And then. Yeah, she is Speaker of the House.

Liberals think Rahm Emanual’s kicking the can down the road on health-care reform (“Congress would deal first with jobs, then banking regulation, and then circle back around to health-care reform”) makes no sense. Well, only if you want to stave off an epic party disaster, I suppose.

But at least Obama still has the postgraduate-degree voters according to Gallup: “The support of postgraduates, who tend to be more liberal and Democratic in their political orientation, was important to Obama’s being elected president. Since he has become president, postgraduates have been among his more reliable supporters, backing him at higher levels than do those in other educational groups.” But that poll was taken before the SOTU and Obama flunked his midterm on the campaign-finance-reform law. That might lose him a few points.

Tom Bevan catches Obama sort of admitting that the health-care bills wouldn’t really, absolutely have allowed everyone to keep their existing health plans. Stuff “snuck in,” you see. If there has ever been a president less willing to take responsibility for anything, I’m hard pressed to recall who it was. And no — George W. Bush did admit error on the initial conduct of the Iraq war and on Katrina, so he’s not even in the ballpark of Obama blame-shifting.

Fred Barnes says Obama is trapped: “President Obama’s greatest need is to escape the ideological grip of congressional Democrats and the liberal base of the Democratic party (they’re one and the same). But he either doesn’t recognize this or, as a conventional liberal himself, isn’t so inclined. This self-inflicted difficulty has put Obama in worse political straits than President Clinton faced after the Republican landslide of 1994.” Unlike Clinton, however, Obama seems to lack the flexibility and ideological creativity to get himself out of his self-made jam.

Ruth Marcus explains: “So can a chastened Obama regain the lost sense of excitement and opportunity? Eventually, perhaps, but never entirely. The second time is never as thrilling.” Especially when the thrill was based on cotton-candy rhetoric and a blank slate onto which Obama told us we were projecting our hopes and dreams. If there is no there there, then the thrill is not likely to return.

Michael Barone says that if the election were held today, it would be worse for the Democrats than it was 1994 or 2002. He calls it “the makings of an epic party disaster.”

Charles Krauthammer on Obama and the KSM trial: “The president is not going to admit error. He never does. He does in the abstract, but he will never admit he actually makes a human error on anything. So he won’t on this. But he knows what’s going to happen, which is the Congress will rebel on this and it will pull the funding, [and] get him off the hook. And the issue [will] end up behind him even though he doesn’t do it himself.” Noting he never mentioned terrorism in the SOTU, Krauthammer adds: “In fact, because his two decisions — the KSM trial in Manhattan and the granting of Miranda rights to the guy who tried to blow up the airplane — are indefensible.”

Matt Continetti points out that it takes Speaker Nancy Pelosi to make Sen. Carl Levin look wise on national security. Levin says of Pelosi’s idea to apply Obama’s freeze to defense spending: “That’s kind of hard to do in the middle of a war.” But maybe if we hop over the Pentagon fence. And then pole vault in. And then. Yeah, she is Speaker of the House.

Liberals think Rahm Emanual’s kicking the can down the road on health-care reform (“Congress would deal first with jobs, then banking regulation, and then circle back around to health-care reform”) makes no sense. Well, only if you want to stave off an epic party disaster, I suppose.

But at least Obama still has the postgraduate-degree voters according to Gallup: “The support of postgraduates, who tend to be more liberal and Democratic in their political orientation, was important to Obama’s being elected president. Since he has become president, postgraduates have been among his more reliable supporters, backing him at higher levels than do those in other educational groups.” But that poll was taken before the SOTU and Obama flunked his midterm on the campaign-finance-reform law. That might lose him a few points.

Tom Bevan catches Obama sort of admitting that the health-care bills wouldn’t really, absolutely have allowed everyone to keep their existing health plans. Stuff “snuck in,” you see. If there has ever been a president less willing to take responsibility for anything, I’m hard pressed to recall who it was. And no — George W. Bush did admit error on the initial conduct of the Iraq war and on Katrina, so he’s not even in the ballpark of Obama blame-shifting.

Fred Barnes says Obama is trapped: “President Obama’s greatest need is to escape the ideological grip of congressional Democrats and the liberal base of the Democratic party (they’re one and the same). But he either doesn’t recognize this or, as a conventional liberal himself, isn’t so inclined. This self-inflicted difficulty has put Obama in worse political straits than President Clinton faced after the Republican landslide of 1994.” Unlike Clinton, however, Obama seems to lack the flexibility and ideological creativity to get himself out of his self-made jam.

Read Less




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