After the retirement announcement from Justice John Paul Stevens this morning, President Obama wasted no time indicating he will impose a rigid litmus test on the next nominee to the Supreme Court.
No, there was no talk about abortion—Obama signaled that he will insist on a nominee who thinks the First Amendment is about equalizing speech, not freedom of speech or prohibiting government censorship.
“It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens,” according to remarks by President Obama in the Rose Garden today.
Media reports indicate that Stevens’ retirement means that Citizens United—and the congressional effort to respond with Schumer-Van Hollen—will be salient this summer:
“Stevens’ retirement means that the Citizens United ruling—an issue the President thought enough of to mention in his State of the Union speech—will be front and center for the foreseeable future. We are always skeptical that campaign finance issues matter to the public but if ever they will impact the electorate the next few months is the time,” writes Chris Cillizza of The Washington Post.
Last May, when David Souter announced his retirement from the Supreme Court, CCP weighed in on the parlor game surrounding his replacement. What we wrote then holds true now:
Indeed, one potential nominee has shown consistently that she has serious doubts about the constitutionality of campaign finance regimes that not only chill but also limit free speech in favor of government-controlled elections. To be fair, her name hasn’t been mentioned as often or as prominently of late, but among the actually possible nominees to the highest court in the land, former Stanford Law School Dean and current Law Professor Kathleen Sullivan would be about as good a nominee as can be expected from this administration when it comes to campaign finance.
Both through her scholarly work and litigation, Dean Sullivan has shown she is a friend of political speech and association. In one of her law review articles-entitled “Political Money and Freedom of Speech” published by the University of California-Davis Law Review-Dean Sullivan explained that, although “the view that political money should be limited has become mainstream orthodoxy[, a]gainst this formidable array of thoughtful opinion, I offer here a contrary view.” Dean Sullivan went on to state that the article “offers a critical guide to the reformers’ arguments by examining the political theories that more or less explicitly underlie them, … conclud[ing] that the much belittled constitutional case against campaign finance limits is surprisingly strong, and that the better way to resolve the anomalies created by Buckley v. Valeo may well be not to impose new expenditure limits on political campaigns, but rather to eliminate contribution limits.”
You go, girl.
Alas, according to “senior White House official[s],” the short list includes Solicitor General Elena Kagan, U.S. Court of Appeals Judge Diane Wood and U.S. Court of Appeals Judge Merrick Garland.
CCP also examined the free speech records of Wood and Kagan during the last round of speculation:
General Kagan—formerly the Dean, and on leave from being a professor, at Harvard Law School—appears to be open-minded (and maybe even moderately pro-speech and anti-regulation). In one of her seminal law review articles entitled “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” General Kagan engages in an extended discussion about why the Supreme Court has cast a skeptical eye on “[l]aws ‘equalizing the speech market.”
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Next, Judge Wood has essentially no campaign finance record at all, but is well-respected as an intellectual and careful jurist. The only serious campaign finance case she appears to have participated in was an earlier challenge brought by Wisconsin Right to Life based on the group’s fear that it would be subject to regulation as a political committee under the State of Wisconsin’s laws. However, the case was never decided on the merits because Judge Wood, joining an opinion by Judge Frank Easterbrook, decided the organization did not have standing to sue, and so there are no tea leaves to read concerning how Judge Wood would address the legality and constitutionality of campaign finance restrictions.
Maybe we shouldn’t point out that Garland was part of a 9-0 ruling last month in SpeechNow.org v. Federal Election Commission that affirmed the right of groups to accept unlimited donations to advocate for or against candidates…
