Ads for Sonia Sotomayor in light of Caperton v. Massey

Politico reports that several groups have come together to run ads supporting the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court.

Key White House allies on Wednesday are launching a television ad called “Justice” to build support for confirmation of Judge Sonia Sotomayor for the Supreme Court…

The coalition – made up of the Leadership Conference on Civil Rights, Alliance for Justice and People for the American Way – says it made a significant initial six-figure buy that will begin running on national network news and cable news Wednesday.

While we at the Center have our own reservations and concerns about Sotomayor’s respect for the First Amendment and the heavy hand government can place on political speech under the guise of so-called campaign finance “reform,” we’re pleased that speech regulations haven’t yet reached out to squelch these groups entirely (although Wisconsin Right to Life was certainly put through the wringer on a similar issue, until the Supreme Court struck down parts of the McCain-Feingold law that limited their speech), and these American citizens are able to weigh in with their thoughts on whether Judge Sotomayor is suitable to serve on the U.S. Supreme Court.

But the ads raise an interesting issue. So called “reform” groups as well as much of the media were recently all aflutter over the independent spending of Don Blankenship, CEO of Massey Coal, in the election for a West Virginia Supreme Court seat between Brent Benjamin and incumbent Warren McGraw. His spending, around $3 million total that mostly attacked McGraw, were a “corruption” of the judicial system, according to these reformers, because Benjamin would surely feel grateful for Blankenship’s spending and rule in his favor.

That, in fact, is the central premise of Caperton v. A. T. Massey Coal, which the Supreme Court will be ruling on within the next month. Benjamin ruled in favor of Massey Coal in one case (while ruling against them in several others), and the losing party – Caperton – is demanding that Benjamin should have recused himself from the case because his impartiality was suspect due to Blankenship’s spending.

This is all very interesting because, if the “reformers” are right – judges are somehow beholden to those who engage in independent speech on their behalf – then as a Supreme Court Justice Sonia Sotomayor would presumably have to recuse herself from any case in which the three groups – the Alliance for Justice, the Leadership Conference on Civil Rights, and People for the American Way – were a party to.

Not only that, but presumably any cases the leadership of these groups were involved in outside of these groups would require similar recusal requirements. Norman Lear, for example, is the founder of People for the American Way, in addition to being an extraordinarily successful television producer. He has also founded several other groups. From his bio:

In addition to People for the American Way, Mr. Lear has founded other nonprofit organizations, including the Norman Lear Center at the USC Annenberg School for Communication (2000-present), a multidisciplinary research and public policy center dedicated to exploring the convergence of entertainment, commerce and society; the Business Enterprise Trust (1989-2000) to spotlight exemplary social innovations in American business; and with his wife, Lyn, co-founded the Environmental Media Association (1989-present), to mobilize the entertainment industry to become more environmentally responsible.

I’ve no idea how often, if at all, Mr. Lear or any of his organizations are involved in court cases. But it doesn’t seem unrealistic to believe that between Mr. Lear’s wide interests as well as those of all the other members of the boards of directors for the organizations involved in paying for the ads supporting Sotomayor, surely some of them will be involved in litigation that reaches the U.S. Supreme Court. Among other notable board members of the People for the American Way:

Alec Baldwin, actor

James A. Autrey, retired president of the Meredith Magazine Group

Brian Cohen, principal at Know Ventures Investments, Inc., an investment firm with interests in technology and child education

Julian Bond, Chairman, NAACP

James Hormel, Jr., philanthropist and grandson of George A. Hormel, founder of Hormel Foods

Dolores C.  Heurta, co-founder and First Vice President Emeritus of the United Farm Workers of America

Joshua Sapan, President & CEO, Rainbow Media Holdings

Reg Weaver, president of the National Education Association


Media and publishing companies, investment firms, a very large civil rights organization, one of the largest food processing companies in the country – doesn’t seem too difficult to imagine any of them having interests before the Supreme Court over the potential lifelong service of Judge Sotomayor.

So if, for example, Alec Baldwin is party to a case before the U.S. Supreme Court in a case involving intellectual property rights in the film industry, or the National Education Association is arguing against school vouchers, will the “reformers” demand that Sotomayor recuse herself because they are part of the leadership of a group that aided her confirmation?

This is exactly the sort of slippery slope that a poor decision by the Supreme Court in Caperton v. A.T. Massey Coal would lead us down. Perhaps Sotomayor would not have to recuse, but if not, why not? Would Sotomayor, or any Supreme Court justice in a similar position, not feel the same sort of gratitude for a group aired helpful ads during their confirmation process as Justice Benjamin is alleged to feel towards Massey Coal by the “reform” community?

Far better, it seems to us at CCP, to simply allow the voters of West Virginia, and the President with the advice and consent of the Senate, to select those jurists they believe will be able to remain impartial and perform their duties appropriately. The alternative as demanded by the “reform” community would be to establish recusal standards that would severely hamper the courts and force judges to step aside any time a case involved someone who had been supportive of their election, selection, or confirmation.

Oh, and the New York Times endorsed Sotomayor today as well. I guess Sotomayor couldn’t participate in anything involving them either. I wonder, did the Times endorse any of the justices who voted their way in New York Times Co. v. Sullivan?



The Center for Competitive Politics is now the Institute for Free Speech.