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Gene Nichol

Prof. Gene Nichol

In case you missed it over the weekend, Gene Nichol had a fine editorial in Raleigh’s News & Observer in which he shined a light on the utter madness of the narrow U.S. Supreme Court majority that, has, effectively, handed our national presidential elections over to a small group of billionaire plutocrats.

Here’s Nichol, after reminding us of Lincoln’s famous call to “allow the governed an equal voice in the government”:

“Few spectacles could more profoundly debase Lincoln’s sense of the meaning of America than the recent parade of presidential hopefuls seeking audience, in supplication, before a growing list of billionaire funders.

The Koch brothers announced that a billion dollars is up for grabs in 2016 for the candidate who most pleases them. Casino operator Sheldon Adelson, who reportedly coughed up $100 million in 2012, allowed tribute to be paid, and sought, a couple of weeks ago at his Las Vegas hotel. Republican candidates appeared with bells on.

Hedge fund magnate Robert Mercer announced he’ll sponsor Ted Cruz. Rick Santorum, once again, will carry the colors of investment manager Foster Friess. Florida billionaire Norman Braman will provide at least $10 million for Marco Rubio. Jeb Bush’s new Super PAC, Right To Rise, will reportedly secure $100 million of individual and corporate donations before the end of May.

Democrats are no better. Hillary Clinton followed up her announcement that curing the evils of money and politics will be a core component of her campaign by traveling to California to seek massive contributions for the Priorities USA Super PAC. She’s confident we’ve forgotten the Lincoln bedroom leases and the overtly purchased attentions (and pardons) of her husband’s administration….

The Washington Post described the unfolding primary as “a brawl of billionaires.” The elites of the super donor class shield and secure their own, seemingly essential, primary. The Center for Responsive Politics reminds that, in 2012, about a hundred people and their spouses contributed 67 percent of all Super PAC funding. The 1 percent of the 1 percent of the 1 percent.”

After reminding us that this ridiculous situation has all been made possible by a series of Supreme Court rulings that have equated unfettered spending by billionaires with “free speech,” he concludes this way:

“We are not without weapons. Jurisdiction can be curtailed. New seats can be added to the court. Judges can be impeached for attempting to destroy democracy. Enough is enough. Tom Paine wouldn’t put up with this. Neither would old Abe.”

He’s right. let’s get to work.

Commentary

As Sharon McCloskey reported in this space yesterday, the the U.S. Supreme Court handed down a modest victory for democracy this week when it said that states can ban direct campaign solicitations by judges. Would that North Carolina would join the list of states to do so.

What was perhaps the most amazing thing about the Court’s ruling, however, was Chief Justice John Roberts’ rationale. Ian Millhiser of Think Progress explains:

“Chief Justice John Roberts’s opinion for the Court in Williams-Yulee is certainly better for campaign finance regulation than a decision striking down this limit on judicial candidates — had the case gone the other way, judges could have been given the right to solicit money from the very lawyers who practice before them. Yet Roberts also describes judges as if they are special snowflakes who must behave in a neutral and unbiased way that would simply be inappropriate for legislators, governors and presidents:

‘States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such ‘responsiveness is key to the very concept of self-governance through elected officials.’ The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must ‘observe the utmost fairness,’ striving to be “perfectly and completely independent, with nothing to influence or controul [sic] him but God and his conscience.” As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.’

Most Americans would undoubtedly agree that judges should not ‘follow the preferences’ of their political supporters, as they would agree that judges should not ‘provide any special consideration to his campaign donors.’ But the implication of the passage quoted above is that members of Congress, state lawmakers, governors and presidents should provide such consideration to their supporters and to their donors. The President of the United States is the president of the entire United States. A member of Congress represents their entire constituency. Yet Roberts appears to believe that they should ‘follow the preferences’ of their supporters and give ‘special consideration’ to the disproportionately wealthy individuals who fund their election.”

Sadly, as Millhiser concludes, the view that it’s okay for donors to buy politicians is at the heart of the Court’s unabashed ruling in the infamous Citizens United decision. What’s bizarre about this week’s ruling is the Court majority’s apparent obliviousness to their own hypocrisy when it comes to donors buying judges.

Commentary

The list of counter-productive proposals on Jones Street has been expanding rapidly in recent days and both the Charlotte Observer and Greensboro News & Record have new essays blasting one that’s already been approved by the state House: the idea of partisan elections for judges (and even school board members!).

Here’s the N&R in an editorial entitled “No need for parties”:

“No matter the motives, North Carolina made a wise move in 2004 [when they made judicial elections non-partisan]. Nonpartisan elections, and officially nonpartisan courts, really do reduce the kind of hyper-partisanship that we have in state and federal legislative bodies. Judges should not line up with their political parties when deciding cases. Voters may perceive partisan differences on the courts, and rulings may break along party lines sometimes. For the most part, however, partisan distinctions aren’t apparent on our state’s highest courts.”

And here’s veteran Republican attorney John Wester writing in the Observer in an op-ed entitled “Don’t further politicize judiciary”: Read More

Commentary

Hillary ClintonWith the 2016 presidential election already taking shape, one issue that likely Democratic nominee Hillary Clinton seems certain to emphasize in the months ahead is the future of the federal courts.

GOP candidates will no doubt trot out their tired and absurd old claims about opposing “activist liberal judges,” but the truth of the matter is that if there are any activist judges on the federal bench these days, they are of the Right. One need look no further than the Scalias, Thomases and Alitos of the world and the Citizens United decision they gave us to see what they look like and how far back they plan on taking the nation.

And speaking of Hillary and the courts, here are a couple of other facts that she’d probably do well to emphasize as she looks to mobilize her likely supporters:

In 2017, the combined ages of Justices Ginsburg, Breyer, Scalia and Kennedy will be 325.

The last time a Democratic president appointed the Chief Justice of the Supreme Court was 1946 — the year before she — Clinton — was born.

Commentary

When North Carolina lawmakers passed a law last year mandating drug testing of public benefit recipients modeled (at least in part) on a law in Florida, civil liberties and anti-poverty advocates told them it was a bad and unconstitutional idea.

Today those advocates are feeling some vindication as the U.S. Court of Appeals for the 1tth Circuit stuck down Florida’s law. This is from the New York Times story:

The three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta, ruled that the law, one of the strictest in the country, was an unreasonable search because Florida officials had failed to show a “substantial need” to test all people who applied for welfare benefits. Applicants were required to submit to urine tests, a measure that Mr. Scott said would protect children of welfare applicants by ensuring that their parents were not buying and using drugs.

“The state has not demonstrated a more prevalent, unique or different drug problem among TANF applicants than in the general population,” the panel said in its unanimous decision, using an acronym for Temporary Assistance for Needy Families.

North Carolina’s law is not identical, but the same basic logic ought to apply: If we’re going to start doing forced bodily searches of welfare recipients, there’s no logical reason the state shouldn’t be able to mandate such tests for all recipients of public benefits — from college students to Social Security beneficiaries.

let’s hope this decision heralds th beginning of the end for such invasive and ill-conceived programs.