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August 2009

August 4, 2009
Battle for the Federal Judiciary?
A thorough analysis of the federal judiciary's composition suggests that President Obama faces an opportunity to drastically shift the make-up of the federal bench. Eric Haren, an attorney and member of the Board of Directors for the ACS Lawyer Chapter in Washington, D.C., details the division between Democrat- and Republican-appointed judges in each of the Courts of Appeal and in several District Courts.

"Justice Robert Jackson said that the Supreme Court is 'infallible' because it is 'final,'" Haren observes in his analysis recently published by Law.com. "But the Supreme Court is final only when it decides a case, a relatively rare occurrence. The lower courts are final, and thus 'infallible,' more than 99 percent of the time."

Haren concludes:

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Other courts, Judicial Nominations, Circuit Courts, Courts of Appeal, Eric Haren, Federal Judiciary, judicial nominations
August 4, 2009
CAC Urges High Court To Preserve Campaign Finance Regulation
In a friend-of-the-court brief filed in Citizens United v. Federal Election Commission, the Constitutional Accountability Center (CAC) urges the Supreme Court to uphold longstanding precedent that allows the government to regulate corporate campaign contributions. On Sept. 9, the high court will re-hear argument in the case that pits Citizens United, the creator of a film that scathingly attacks Hillary Clinton, and the FEC, which said the film amounts to a lengthy campaign attack ad subject to the strictures of federal campaign finance law. Citizens United will argue before the high court that the campaign finance law violates its First Amendment rights.
Elizabeth Wydra, CAC's chief counsel, writes that the "text and history" of the Constitution does not grant corporations the same First Amendment rights as individuals.

Wydra continues:

Accordingly, the idea that government can act to prevent improper corporate influence in elections is not just reflected in more than a century of campaign finance reform, it is woven into the very fabric of our Constitution.

Perhaps even more fundamentally, affording corporations the same right to participate in the political process as individual citizens would elevate corporations far above the place they have occupied in our constitutional system since the Founding. While the text and history of the Constitution show an ever-expanding concern for the rights of individuals to vote and participate in the political process, constitutional text and history do not suggest an intention to treat corporations in the same manner. To the contrary, the Constitution gives federal and state governments broad power to regulate the acts of corporations.

Wydra's full post is here.

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Campaign finance, Election law, Campaign Finance, Constitution, First Amendment, Supreme Court
August 3, 2009
Former High Court Justice: ‘Civic Education … Not Good Enough’
Editor's Note: This post was updated, Aug. 4, 2009, to include a link to the ABA's video of Justice David Souter's speech.

Former Supreme Court Justice David Souter, during the recent annual ABA gathering, urged attendees to become more engaged in bolstering civic education. Souter, reported Lynne Marek for The National Law Journal, expressed frustration with surveys showing that large numbers of Americans cannot identify the three branches of government.

Souter said:

I'm here to speak this evening because civic education in the United States is not good enough, and we have to do something about it. I want to speak about the risk to the constitutional government when a substantial portion of the American populace simply fails to gain that understanding. In particular, I'll ask you to consider the danger to judicial independence when people have no conception of how the judiciary fits within the constitutional scheme.

Without some idea of separation of powers, limitations of power and the need to enforce those limits, the idea of judicial independence must be practically meaningless.

A recent ACSblog symposium, "Souter's Clerks Speak," featured extensive analysis of the former justice's high court career.

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Supreme Court, Separation of powers, Constitutional Interpretation and Change, Courts, Judicial Independence, Justice David Souter, Separation of Powers