FIRST ONE @ ONE FIRST

My New CSMonitor Piece

Posted in Non-justiciable by Mike Sacks on September 29, 2010

I have two short articles in this week’s Christian Science Monitor.  One, an info briefing on the states’ lawsuit against the PPACA, has just been posted online:

President Obama signed the Patient Protection and Affordable Care Act on March 23. Within minutes, 14 state attorneys general filed lawsuits in federal courts in Virginia and Florida challenging the constitutionality of the law’s “individual mandate,” which will require nearly every American to buy health insurance or face annual fines.

Although the individual mandate doesn’t kick in until 2014, legal challenges to the mandate have been met with some sympathy in court. As these cases move forward, it’s worth taking another look at the suits.

Read the rest over at the Monitor’s website.  When they post the other piece, I’ll link to it.  My previous work for the Monitor is available here.

Quick Prognostication

Posted in Clairvoyance, Law and Politics by Mike Sacks on August 13, 2010

Tom Goldstein at SCOTUSblog explains why he believes Acting Solicitor General Neal Katyal will be named the official Solicitor General.  I agree with his analysis, but want to extrapolate a bit more: Katyal will be named SG with the specific purpose of priming him for a Supreme Court seat.

Now here comes my march of the “ifs”:

The said seat will not be open for quite some time.  Justice Ginsburg, likely the next justice to retire, has no plans to do so for at least another five years.  Assuming that Ginsburg remains healthy and that President Obama wins reelection, I also assume that Obama would replace Justice Ginsburg with a woman.

Whether or not Ginsburg proves to be the final retirement under Obama, if Katyal wants to leave the SG’s office before another Court vacancy, then I expect he will be nominated to a federal court of appeal.  Doing so will bolster his position as a future SCOTUS nominee, even if Justice Kagan’s nomination straight from the SG’s office has proven federal judgeships unnecessary for a nominee’s confirmation.

If a fourth vacancy comes up before the 2016 election, then Katyal will be the pick.  By age and political allegiance, Justice Breyer would be the most likely justice to voluntarily leave the bench during the Obama administration, especially if the country’s in a Republican mood leading into 2016.  Doing so would leave room for Katyal, Breyer’s former clerk, to be a reliable successor while also becoming the Court’s first Indian-American justice.

Further, if there is no fourth vacancy under Obama and a Republican becomes president in 2016, Katyal, who is now only 40 years old, will be able to spend eight years building his reputation as a judge and still be young enough for a nomination in 2024.  Then again, by 2024, Clarence Thomas would be the oldest justice at 76–hardly retirement age for justices these days.

So instead, Katyal’s placement as SG with an eye towards SCOTUS relies on the biggest “if” of all: the departure of Justice Scalia or Kennedy a) during a Democratic administration and b) before the retirement of Justice Breyer.  This comes loaded with all sorts of assumptions, the most reasonable being a Democratic presidency beyond 2016–itself a far from a reasonable assumption.  That said, in such an instance, Katyal could be the all-around perfect pick to thwart the full-on thermonuclear confirmation war expected to occur should either Scalia or Kennedy leave their seat–and the Court’s ideological balance–in Democratic hands.

Goldstein’s explanation of Katyal’s credibility from both the left and the right could serve just as well for a SCOTUS nomination as it does for an SG appointment:

Katyal is the Acting Solicitor General, having served as the Principal Deputy Solicitor General throughout the Administration.  In the Clinton Administration, he served as National Security Advisor in the Department of Justice.  He then was a very well known academic (focusing on national security questions) who also practiced before the Court.  He was among a handful of lawyers who formed an advisory body to Barack Obama during the campaign.  Katyal’s work before the Court was very highly regarded, including his victory in Hamdan v. Rumsfeld.  (Another disclosure, I was co-counsel inHamdan, but my role was relatively minor.)  Katyal’s reputation has been sterling, both within the Office of Solicitor General and in his interactions with the broader Department of Justice and the government generally. [...]

Katyal has broad support in the Republican legal establishment that should smooth the confirmation process.  My intuition when I decided to write this piece was actually the opposite:  that Katyal’s representation of Hamdan would present an obstacle to his nomination and confirmation.  (Verrilli has somewhat similar issues, given that (like me) in private practice he generally appeared on the left-leaning side of cases.) But it turns out that conservatives have recognized that Katyal’s role in Hamdan was entirely appropriate and that he has an exceptionally strong record on national security questions.  He not only worked on national security issues for the government prior to Hamdan, but as an academic supported the use of national security courts (with Jack Goldsmith), and he subsequently represented the Obama Administration in successfully arguing against both the challenge to rendition in the Arar case and the claim that habeas corpus rights should be extended to detainees held at Bagram Air Force Base (drawing criticism from the left and the New York Times editorial page).  For conservatives rejecting criticism of Katyal’s work in Hamdan, see this piece by the Wall Street Journal editorial page; this piece by Reagan Solicitor General Charles Fried; and these articles quoting Ted Olsonand Richard Epstein.

Barring an actual conservative nominee or an indefinite hold on any nominee until the Republicans take back the White House, Katyal could be the best, most palatable nominee the Republicans could hope for from a Democratic administration.

Of course, a lot happens between election years and Supreme Court vacancies.  Nominations themselves are entirely dependent upon political timing.  But I would be surprised if the White House hasn’t discussed the very scenarios I outline above when talking about Katyal.

Please, No Vapid Charade

Posted in Law and Politics by Mike Sacks on May 10, 2010

Solicitor General Elena Kagan, President Obama’s nominee to succeed John Paul Stevens as an Associate Justice of the Supreme Court, wrote in 1995 that the confirmation hearings had turned into a “vapid and hollow charade.”  Since she wrote those words, the hearings have only grown vapider and hollower.  And my initial thought upon last night’s official announcement that Kagan would, indeed, be the nominee, was that this summer we’d see the vapidest and hollowest hearings of them all.

It has become a truism that President Obama nominated Kagan not only for her youth, but also for her lack of a paper trail on our country’s hot-button political issues.  One may easily assume on this latter point that Kagan’s confirmation hearings will reflect her ideological guardedness.  She has given the public very little of her personal views, and what views she has revealed she may deflect as reflections of her bosses’ thinking in her capacities as law clerk to Justice Thurgood Marshall or as associate White House counsel to President Bill Clinton.

But there are several reasons why Kagan’s confirmation hearings may not be the sequel to Robo-Soto, last summer’s impossibly boring C-SPAN blockbuster.

First, Elena Kagan is not Sonia Sotomayor.  Kagan will not inspire among Republicans on the Senate Judiciary Committee the same fear of runaway identity politics as Sotomayor had done even before her “Wise Latina” remark became the shorthand buzzword for a judicial activist supercharged by minority status.  No matter how many times her inquisitors invoked Miguel Estrada to prove they did not fear Sotomayor for her ethnicity, there remained the palpable sense that Sotomayor had to convince skeptic Senators that she would not reshape our laws to comport with a caricatured Hispanic’s-eye view of America.

In contrast, Kagan’s lack of “otherness” will keep the Senators from framing her liberalism as springing from such “illegitimate” sources as identity and experience.  Kagan will have a freer hand, then, to pitch her liberal jurisprudence–if she has one–without giving her antagonists the opportunity to hit a race-and-class-based home run.  On the other hand, however, Senate Republicans may not have the same reticence to attack Kagan when no fear exists of their being branded racist.

Second, if the Senate Republicans come out swinging against Kagan’s personal stance as Dean of Harvard Law School in banning military recruiters from campus over “Don’t Ask, Don’t Tell,” then Obama wins.  In the absence of any record on Kagan’s abortion views, her antagonists will sieze her views on gays in the military to rally social conservatives in time for the midterm elections.  But this line of attack appears to be a loser: appeals to God, guns, and gays lost their power after the 2004 Presidential election.  With DADT support dwindling and our top military leaders calling for its repeal, the fact that the Court unanimously held against a coalition of law schools’ 2006 constitutional challenge to the Solomon Amendment–which tied federal funding to allowing military recruiters on campus–will mean little to the public.  Rather, the senators will appear to be simple homophobes engaging in impotent political anachronisms.

Third, Kagan’s comments on the confirmation process as a “vapid charade” will come back to haunt her.  She may turn this into a good thing if she defends rather than disowns her fifteen-year-old statement.  Certain senators may feign offense and indignation, but if she can frame her condemnation as one against nominees and senators, Democrats and Republicans, then perhaps we may see the first few rays of honest reckoning with our broken process since Clarence Thomas condemned it as a “high tech lynching.”  But whereas Thomas’s comments came from his particular experience before the Committee, Kagan may speak to the less personal, but no less destructive impact our substance-less confirmation hearings have had on our country’s conversation about law and politics.

Now, do I think any of this is going to help our current state of the Senate’s advise-and-consent role?  No.  If Obama wanted a referendum on a quarter-century of confirmation wars, he would have nominated Judge Diane Wood to step up to the Senate and defend her abortion and religion decisions against Senator Sessions’s simple-minded slogans.  Instead, Obama selected someone who, like then-Judge John Roberts before her, can charm her way past the gatekeepers without saying too much.

Still, I hold out hope for a surprise.  If a Supreme Court nomination does not amount to an ideological change on the bench, then at the very least it should spur a systemic shift in the confirmation process.

Someone Hasn’t Been Reading F1@1F…

Posted in Law and Politics by Mike Sacks on April 18, 2010

In today’s New York Times Week in Review section, Peter Baker writes of “Obama v. Roberts: The Struggle to Come“:

The urgency is greater this year since the Citizens United decision in January, in which the Roberts court threw out precedents to rule that corporations have First Amendment rights to spend money in election campaigns. Advisers said the ruling crystallized for Mr. Obama just how sweeping the chief justice was willing to be. Indeed, some around the president suspect that Chief Justice Roberts, after moving incrementally in his first few years on the bench, has taken a more assertive approach since Mr. Obama took office.

This assertion defies facts.  In fact, I began F1@1F to explore whether the opposite holds true–that Chief Justice Roberts has guided the Court more modestly under Democratic electoral dominance than he had at the start of his Chiefdom.  From F1@1F’s very first post:

  • During the 2006-07 term, the first full term in which both Chief Justice Roberts and Justice Alito served together, Republicans controlled the White House and both chambers of Congress.  Meanwhile, the Roberts Court aggressively pushed rightward on abortionstudent speechschool desegregation, gender discrimination, and campaign finance.
  • The Court’s 2007-08 term proceeded alongside a divided government with a Republican President and Democratic majorities in the House and Senate.  The Court reflected the division: President Bush, seeking a legacy, saw a conservative interpretation of the Second Amendment win out in Heller; the Democratic Congress, elected in a wave of anti-war sentiment, found its hostility to Bush’s war on terror policies reflected in the Court’s granting habeas corpus rights to Guantanamo detainees in Boumediene.
  • Last term, which straddled the Bush and Obama presidencies, found the Court taking a blockbuster case in in September 2008 that threatened to invalidate a key civil rights provision of the Voting Rights Act of 1965, but pulled back with an 8-1 decision in June 2009 upholding the provision.
  • This term, the first one fully operating alongside a Democratic Presidency and Congress, is progressing in an almost post-partisan fashion, as if the conservative Court has taken to heart President Obama’s overtures to the Right unwelcome among Congressional Republicans.  The Court is reckoning with one case that pits liberal values against liberal values, another in which two conservative values clash; further, McDonald v. City of Chicago may result in a grand bargain in which the conservative Heller majority can extend its interpretation of the Second Amendment to the states by breathing new life into a clause of the Fourteenth Amendment that could strengthen constitutional protection for liberal causes.  In fact, the only case that threatens a drastic shift to the right in a politically salient issue is Citizens United, the campaing finance case I camped out for in September.
  • Since I wrote that in December, Citizens United has emerged, as expected, as the Court’s one big rightward expenditure of its political capital this term.  And although the McDonald oral argument put to death my speculation of a grand bargain between the Court’s liberal and conservative blocs, its result–incorporation of the Second Amendment to the states–will not cause a national backlash and political firestorm.

    The OT09 docket’s conspicuous absence of any other red-hot button case is, in my opinion, hardly an accident. Roberts knows just how much–or little–political capital his Court possesses to achieve conservative gains under a Democratic electoral mandate, and he has picked his battles accordingly.  Baker’s sources are in plain error to use Citizens United as proof of a more aggressive, confrontational Roberts Court.

    Baker’s article was not a total wash, however.  Noting the Chief Justice and the President’s public colloquy of late, the article concludes:

    The debate between the men, by necessity, takes place in this way — indirectly, and soon through the confirmation hearing of a new nominee. Christopher Edley Jr., an Obama adviser and dean of the law school at the University of California at Berkeley, said it was a shame the two could not have at it one on one.

    “Televise this chief justice and this president on stage at the Kennedy Center for three hours talking about the role of government and the future of our polity,” Mr. Edley said. “This historic clash of intellectual titans would be the most powerful civics lesson since the Federalist Papers, and we could sure use it.”

    We sure could.

    UPDATE: Meanwhile, in The New Republic, Barry Friedman and Jeff Rosen support what I’ve written here several times over (or the other way around – as they are law professors who write books, not blogs):

    How will the Supreme Court respond to these attempts to enlist it in a war with the president and Congress? If history is any predictor, the justices won’t be interested in a sustained assault. As both of us have written in recent books, on the big issues, over time, the Court tends to come into line with public opinion. Think here of gay rights, women’s rights, and abortion. And when the Court has wandered outside the mainstream–on issues like the death penalty or economic regulation–it has quickly retreated after encountering resistance from the public, Congress, or the president. The Court, in other words, is very sensitive to the possibility of backlash against its actions; and if anything, the heated reaction to its recent decision striking down campaign finance restrictions on corporations is only likely to make it more so.

    [...]

    Which brings us to the Roberts Court. Is it likely to stand in the way of Obama and the Democrats’ agenda? What will happen, in particular, with health care?

    We aren’t seers, and a lot can happen before any of this makes its way to the Court. But nothing we’ve seen—including January’s decision in Citizens United—leads us to believe that the Court is likely to behave differently in the future than it has in the past.

    Which means that the Court is going to be hesitant to launch a sustained challenge to the core of the Democratic agenda. And in the unlikely (but not impossible) event that it does decide to launch a sustained challenge, the justices will find themselves under attack in return as long as the Democrats still have popular support. If that happens, history suggests that such attacks on the Court will eventually precipitate some kind of judicial retreat.

    A Sign?

    Posted in Law and Politics by Mike Sacks on April 10, 2010

    In what may be a hint of who may be Obama’s next Supreme Court nominee, Dawn Johnsen yesterday withdrew her nomination to be the chief of Obama’s Office of Legal Counsel.  From the AP via WaPo:

    Dawn Johnsen‘s withdrawal – a setback for the Obama administration – was announced late Friday by the White House on a day the capital’s legal and political elites were absorbed in the news that Justice John Paul Stevens would retire from the Supreme Court.

    The Senate Judiciary Committee had recommended Johnsen’s confirmation on party-line votes. But several Republicans objected to her sharp criticisms of terrorist interrogation policies under President George W. Bush, and the full Senate never voted on her nomination.

    Is this a setback for the Obama Administration as the report says, or Johnsen’s ceding ground so that Obama may name a similarly strident nominee for the Supreme Court?  That is, Obama may only have enough political capital for one big, ideological nomination fight, and it’s far more important for his administration to take a stand on the Court rather than the OLC.

    Filibustering the Next Nominee

    Posted in Clairvoyance, Law and Politics by Mike Sacks on April 5, 2010

    The trifecta of recent Justice Stevens interviews has pushed to the fore speculation about his successor.  Such speculation has been going on for quite a while–F1@1F has been at it since its first day of existence.  This weekend, two members of the Senate Judiciary Committee, responded to the interviews with their own thoughts.

    From FOXNews.com yesterday:

    Senate Minority Whip Jon Kyl, R-Ariz., speaking on “Fox News Sunday,” warned President Obama not to try nominating anyone “overly ideological” to replace Stevens, who is known as the leader of the liberal wing of the court.

    He suggested the party did not want anyone so outspoken as Sonia Sotomayor, who was picked to replace former Justice David Souter last year, and said the decision on whether the GOP will filibuster will “all depend” on who the next nominee is.

    “I think the president will nominate a qualified person. I hope, however, he does not nominate an overly ideological person. That will be the test,” Kyl said. “And if he doesn’t nominate someone who is overly ideological, I don’t think — you may see Republicans voting against the nominee, but I don’t think you’ll see them engage in a filibuster.”

    He said Republicans would only filibuster under “extraordinary circumstances,” the standard agreed to after a series of clashes in Congress over judicial nominees under former President George W. Bush.

    At least one Democrat is taking Kyl’s threats seriously.

    Stevens told The Washington Post he “will surely” retire while Obama is still president. But Sen. Arlen Specter, D-Pa., told “Fox News Sunday” he hopes Stevens will wait until next year to do it, when the politics in Congress would potentially be a bit less toxic.

    “I think the gridlock in the Senate might well produce a filibuster, which would tie up the Senate on a Supreme Court nominee,” Specter said. “I think if a year passes there’s a much better chance we can come to a consensus.”

    Back in January, immediately after Scott Brown’s Senate win, I wrote that President Obama may be able to use Republican apoplectic overconfidence to his advantage:

    Brown’s election could very well result for the GOP in a case of “be careful what you wish for” should Stevens step down this summer.

    To be sure, without 60 guaranteed votes, Obama may move away from choosing a nominee with the liberal record of Judge Diane Wood of the Seventh Circuit.  But then again, if he chooses her–a natural heir to Justice Stevens–and the GOP as a result holds up a Supreme Court nomination through November, the Democrats will more potently than ever be able to paint the 41-person GOP minority as an obstructionist, nihilist, and extremist Party of No.

    In other words, Obama may be wise to continue with his next nominee as planned–if indeed he planned to pick a proven liberal–just to show  that when given a high enough platform and just enough rope, today’s GOP will hang itself.

    With Republicans resolving to run on repealing and replacing the PPACA, expect some commentators to reflect Senator Specter’s squeamishness in the face of Senator Kyl’s threats.  They will clutch Massachusetts ballots and wave the Court’s Citizens United opinion so to reveal doomsday visions of insurance companies emptying their freshly unchained coffers into the 2010 campaign on a multimedia effort to smear all incumbents who voted for health care reform as fascistssocialists, and communists.

    In response to the GOP’s resolution, Obama told them to “go for it.”  He might as well have been speaking about Republicans’ including any of his possible judicial nominees in their Party of No platform for the midterm election.

    Specifically, Obama must understand that if the GOP filibusters or stalls his next Supreme Court nominee into the fall, then the Republicans will be the ones that suffer come the first Monday in October.  If Justice Stevens conditions his resignation upon the confirmation of his successor, then Obama will be able to paint the GOP as a group of blackhearts gleefully depriving a 90-year-old man of his hard-earned retirement.  And if Stevens unconditionally steps down, then a Congressional minority will be held responsible for keeping the Court from operating at full capacity at the start of next term.

    In either situation, the Court could become a big issue for the final month before Election Day.   Don’t be surprised if the Chief Justice, facing a massive stack of cert. petitions awaiting the justices for their late September conference, extends his public colloquy with Obama to join him in admonishing the Senate minority to cease playing politics with the Court.

    UPDATE: Just as I posted this, Dahlia Lithwick’s latest, “Short Shrift: The Supreme Court Shortlist as Political Anthropology,” popped up in my reader:

    As an anthropological document, the Bloomberg News list [of Wood, Kagan, and Garland] reveals a good deal about the general fatigue of the court-watchers. We’ve become so reliant upon the old scripts about “activists” and “umpires” and abortion and religion that we prefer them to experimenting with new ones.

    I believe that this latest round will be the last to follow the old scripts, and even then, it may depart from them.

    • Garland will be the only nominee of the three that needn’t depart by choice or force from the old script.  He’s a moderate, and the Republicans will not push hard against him if he’s nominated.
    • Kagan’s nomination will be novel only because she is not, nor has she ever been, a federal judge.  Historically, however, Solicitors General have been commonly put forward for the Court: the last SG to have been nominated was Bork, the last to have been confirmed was Thurgood Marshall.  Still, if you thought that Sotomayor reached a certain kind of performance art perfection in her confirmation hearing stonewall, Kagan’s may be even more fantastically opaque.
    • While Wood is a federal appeals judge, she will be the first full-fledged liberal nominee to the Court since Thurgood Marshall, even if her liberal jurisprudence would have been deemed only slightly left of center in his time.  Further, with her extensive paper trail and Congress’s Democratic majority, Wood may even break the post-Bork spell on fearful, know-nothing confirmation hearings.  If she can finally kill off that bit of the old script, then Obama and future presidents of either party may begin diversifying their Supreme Court shortlists to include other capable nominees, judges or not, who can be confirmed for what they say, not for what they don’t say.

    UPDATE II: Newsy.com has compiled a video roundup of the recent Stevens hubbub:

    Obama and Roberts Agree

    Posted in Case Reports, Clairvoyance, Law and Politics by Mike Sacks on March 27, 2010

    The public colloquy between President Obama and Chief Justice Roberts continues, but this time they have acted in concert rather than at loggerheads.

    At Tuesday’s oral argument in New Process Steel v. National Labor Relations Board, the Court considered whether the five-seat NLRB could command a quorum of three when only two members actually sat on the board.  The Government argued that two board members could, in fact, constitute a quorum for NLRB deliberations in the face of Senatorial obstruction to the President’s three nominees to the NLRB.

    After Justices Kennedy, Scalia, and Ginsburg grilled Deputy Solicitor General Katyal over the broken nomination and confirmation process, Chief Justice Roberts lobbed a final, “why are we even here?” question: “And the recess appointment power doesn’t work why?”

    Today the President demonstrated that he heard the Chief Justice’s suggestion and used his recess appointment power to place two of his NLRB nominees, both Democrats, in their posts.  Obama left unappointed his third nominee, a Republican.

    Whether Obama’s move will compel a majority of the Roberts Court to dismiss the case as moot remains uncertain.  Like Kiyemba, the facts of the case before the Court have so changed as to seemingly unmoor the legal question.  For this reason, the Court may “G…VR” the case for consideration by the newly quorum’ed NLRB.

    Nevertheless, New Process Steel’s claim remains grounded in the fact that a statutorily questionable two-member NLRB rendered a decision against the company; indeed, there stand many NLRB decisions made by its two members whose statutory legitimacy would remain questionable without the Court’s ruling.

    Further, even with the four members now sitting on the NLRB, simple math and recess appointment rules suggest that the Court would do well to clarify matters: first, one NLRB member is set to retire this summer; second, the two members appointed today may not receive Senate confirmation at the end of the next session of Congress–and at least one has faced significant opposition.  Four minus one minus one or two.  That’s back to below three NLRB members.

    The concrete grievances over the legitimacy of past two-member NLRB decisions such as the one against New Process Steel are far more persuasive reasons why the Court should address the merits of this case than the fear of some future moment when the NLRB dips back down below three members.  But that fear of the future will surely affect the Court’s reasoning if it does choose to decide the case so to retroactively (and therefore prospectively) bless or condemn the two-member decisions.

    The Roosevelt Rubicon

    Posted in Clairvoyance, Law and Politics by Mike Sacks on March 24, 2010

    Per the latest round of constitutional attacks on the now-passed Patient Protection and Affordable Care Act (PPACA), my original post from early January still holds.

    The Roberts Court knows not to backpedal across the Roosevelt Rubicon.  Striking down the PPACA will be today’s equivalent of the pre-1937 Hughes Court’s sustained attack on New Deal legislation.

    Any invocations of, say, Citizens United in fear (or support) of the notion that the Roberts Court will not hesitate to strike down the law are overheated.  We may expect the conservative bloc and Kennedy to chart rightward on conservative-libertarian issues, but as long as the Democrats hold at least one of the elected branches, the Court will invalidate neither landmark New Deal and Great Society legislation nor core components of the Obama agenda.

    I cast the same suspicion over arguments citing Bush v. Gore as historical, if not legal, precedent for the Court’s capacity for rash, political meddling.  Challenges to the PPACA will simply lack the blinding immediacy of a Presidential election left unresolved a month before Inauguration Day.

    Finally, all of this hand-wringing may be for naught: I think the circuit courts will uniformly uphold the law’s constitutionality against attacks, and without a circuit split, I doubt the Court will even grant certiorari.  And if there is a circuit split and the Court does hear the case, then I think we’re likely to see a near-unanimous upholding of the law.

    In contrast, the Court will more likely reserve its blockbuster 5-4 decision to affirm or reverse whatever the Ninth Circuit will hold on the gay marriage case, an issue of grave importance to movement conservatives without the imprimatur of historical inviolability implicitly grandfathered into the PPACA from its LBJ- and FDR-era ancestors.

    Is Jeff Rosen Reading F1@1F?

    Posted in Clairvoyance by Mike Sacks on February 18, 2010

    Professor Rosen follows up his TNR piece on Chief Justice Roberts’s political awareness with a WaPo column giving serious thought to another F1@1F fancy – Justice Barack Obama:

    He’s too detached and cerebral. Too deferential to Congress. Too willing to compromise. And he’s too much of a law professor and not enough of a commander in chief, as Sarah Palin recently admonished.

    These are some of the qualities for which the president, rightly or wrongly, is criticized. They are also the qualities that make him well suited for another steady job on the federal payroll: Barack Obama, Supreme Court justice.

    Rosen continues with a couple of his fantasy scenarios:

    It would be unusual, but not difficult, for Obama to get himself on the Supreme Court. He could nominate himself to replace John Paul Stevens, for example, or he could gamble and promise Hillary Rodham Clinton that he won’t run for reelection in 2012 in exchange for a pledge of appointment to the next vacancy.

    I believe my fun with the future is less fantastical, at least in terms of a Justice Obama timeline.  As I implied in one of my very first F1@1F posts, should there be a Democratic President at the dawn of the next decade, Obama is more likely to succeed Scalia than he is to swap himself out for Ginsburg during his own presidency.

    Even if my own peyote prediction trumps Rosen’s silly scenarios, the rest of Rosen’s column remains quite compelling.  He invokes Justice Brandeis as the prototype for a Justice Obama:

    Brandeis, who served on the high court from 1916 to 1939, offers a good model for Obama. Known as “the people’s lawyer,” he was an economic populist, criticizing the “curse of bigness” that led oligarchs such as J.P. Morgan to threaten the entire financial system by taking reckless risks with “other people’s money” and then to demand government bailouts after their bad bets. But Brandeis opposed bigness in government as well as in the private sector, and during the New Deal he preferred regulations that prevented companies from getting too large in the first place — such as the Glass-Steagall Act separating commercial from investment banking — rather than the creation of huge federal bureaucracies to regulate the economy.

    On the high court, Brandeis generally stood for judicial restraint, denouncing conservatives for striking down progressive state economic regulations. But he also believed fiercely in the First Amendment and freedom from unreasonable searches. Both a pragmatist and a civil libertarian, he provides a judicial ideal for Obama, whose record resembles his in many respects.

    Besides Obama’s judicial qualities listed by Rosen, Obama also has an ambitious vision of his place in history.  But he also knows that making history is all in the timing, and he won’t make history by simply becoming a Justice.  Even if he’d be the first Justice from Hawaii, he wouldn’t be the first Harvard Law graduate, University of Chicago professor, Senator, African-American, or President to turn up on the Court.

    But he could be the momentous fifth vote to turn the Court back to the left.  He won’t make that history if he replaces Stevens or Ginsburg.  And don’t think Obama doesn’t know that–if Obama has his eye on the Court, of course.

    Whitehouse.gov Gets Obama’s Back in SCOTUS Spat

    Posted in Supreme Conflict by Mike Sacks on February 1, 2010

    Norm Eisen, Obama’s Special Counsel for Ethics and Government Reform, counters Alito’s “not true” regarding foreign corporate money in American elections:

    We noted with interest reports that subsidiaries of foreign corporations from across the globe have launched a lobbying campaign in Washington to protect their newfound power to influence American elections under theCitizens United case.  About 160 of these U.S. subsidiaries of foreign-owned or controlled corporations are involved in a lobbying group trying to stop President Obama and Congress from enacting limits on their spending in political campaigns.  Worse still, the lobbyist leading the effort refused to disclose all the companies involved in the lobbying campaign.  But it appears that the group of companies has the potential to spend hundreds of millions of dollars to influence American elections. [...]

    Some have argued that Citizens United will not increase foreign influence, but they are mistaken.  The four Justice dissent, authored by Justice Stevens, specifically pinpoints the fact that the majority opinion opens the door to foreign influence — see page 33 and page 75.   The majority openly acknowledged that foreign influence could pose a potential issue here, as did the lawyer for Citizens United. [...]

    Others assert that subsidiaries of foreign companies already spend millions on independent expenditures and so the Citizens United decision will make no difference.  That misses the point.  The electioneering communications law that was struck down restricted corporate ads naming elected officials in the crucial 60 days before general elections and 30 days before primary elections.  Now those corporations can spend freely on those ads during the most critical periods in elections and the express message can be to vote for or against a named candidate.  That constitutes an enormous expansion of corporate power to influence elections.

    Others claim existing law is sufficient to protect against foreign influence in our elections. That too is wrong.  Although the Federal Election Commission (FEC) restricts foreign nationals from spending or directing spending in American elections, it does not prohibit corporations in which foreign nationals are shareholders or hold significant sway or de facto control from making such expenditures.  For example, foreign-controlled corporations making independent expenditures cannot be relied upon to make decisions contrary to the political interests or preferences of their owners.  Before Citizens United, these problems did not exist at the federal level since the corporations themselves were limited in what they could do regardless of whose money or influence was behind them.  But now that restriction is no more.  Accordingly, because of these realities of how foreign control can operate, a stronger rule is needed to protect our domestic politics from foreign influence.

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