Friday, December 12, 2003

Most inane comment on the Campaign Finance Decision yet....

This inane comment is courtesy of the New York Times News Analysis section, and the recipient of my first right and proper Fisking.

The Supreme Court that upheld the new campaign finance law on Wednesday was a pragmatic court, concerned less with the fine points of constitutional doctrine than with the real-world context and consequences of the intensely awaited decision.

Fine points like "Congress shall make no law....abridging the freedom of speech..." Yes, that First Amendment is just a little fine point of constitutional doctrine, nothing to worry about. If advertisements related to political figures running for office are not protected and are not core political speech that shall not be abridged than what is? Oh, this didn't restrict the press' freedom to shill for their favorite candidates close to election time, ok, understood.

Although the outcome was unexpected — few people had predicted that the court would uphold all the law's major provisions so unequivocally — the majority's approach to its task should probably have come as no surprise.

Right, we shouldn't be surprised when the Court uses the Bill of Rights for toilet paper, especially with the liberal and centrist ideologues on the bench currently.

It was the same 5-to-4 majority that barely six months ago navigated the court's encounter with an even more contentious issue in American life, affirmative action, and produced a decision that was similar in important ways.

Yes indeed it was similar, in that both decisions are totally wrong, outcome determinative, and counter to the tenents of the Constitution.

Justice Sandra Day O'Connor's majority opinion in that case upheld affirmative action in higher education, drawing on a conclusion that its benefits "are not theoretical but real" and taking a posture of judicial deference to "complex educational judgments in an area that lies primarily within the expertise of the university."

I'm damn glad she wasn't on the court in Brown v. Board of Education, she would likely have deffered to the "complex educational judgments in an area that lies primarily within the expertise of the" school board. Perhaps she would have upheld segregation as weell on the point that 'its benefits "are not theoretical but real" '.

The opinion left the same four justices who dissented on Wednesday fuming that the majority had evaded the command of precedents that made any official counting by race almost insuperably suspect, just as the dissenters complained this week that the majority had failed to give sufficient weight to the First Amendment rights of campaign donors and speakers.

Its not just the 'same four justices' who are fuming. Anyone that expected this court to do its job and follow precedent and uphold the Constitution are likewise amazed at this upholding of a blatantly unconstitutional law designed to protect political incumbents and the media's control on information flow in the lead up to an election.

In the campaign case, Justice O'Connor shared the assignment of writing the majority opinion with Justice John Paul Stevens. He has long been the court's most outspoken supporter of campaign finance regulation, dismissing the First Amendment objections as insubstantial. She, on the other hand, had been largely a mystery, having voted on both sides of the issue over the years while writing less than three pages of opinions in her own voice.

Unlike redistricting cases, on which Justice O'Connor has been deeply engaged, campaign finance issues "didn't seem to motivate her," Prof. Richard L. Hasen, an election law specialist at Loyola Law School in Los Angeles, said on Thursday. "We never knew where she stood," he added.

And by golly, we still don't, perhaps she just enjoys swinging from side to side every now and then to get her name in the news and to hell with the Constitution in the process. She's already turned this court's title from the Rehnquist court to the O'Conor court.

From a majority that included Justice O'Connor, this language was striking. In the court's federalism decisions, a five-justice majority — comprising Justice O'Connor and the four dissenters in the campaign case — has immunized state governments from various federal antidiscrimination laws, refusing to defer to Congressional judgments on a need to bring the states within the laws' coverage.

Those decisions have been increasingly controversial. Against that backdrop, it is possible to view the campaign finance decision as something of a corrective, a pragmatic intervention not only to shape the outcome of the case at hand but also to lower the temperature of an increasingly fraught relationship with another branch of government.

Oh, so forget the Court's constitutional duty as a separate and co-equal branch of government, and forget your task to "say what the law is", This Court's majority also forgot that

"the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply."

The court gave Congress space to breathe," Prof. Robert C. Post of Yale Law School said on Thursday.

Professor Post said he had little doubt that Justice O'Connor's role had been decisive. "Her political antennae moved her," he said. "Things were getting pretty explosive. The tension was too high, and she understood that the rhythm of the court's relationship with Congress had to be attended to, the pace of the conversation had to be lowered."

So the decision was done to be nice to Congress and not to uphold the Constitution. So liberties and core free speech rights are sacrificied in order to reduce the explosive tension? Nice to see the majority of this Court will fight to uphold the Constitution under pressure...oh, right, sorry, this majority just surrendered like a Frenchman at war.

On that theory, Justice O'Connor's central role extends even further than it appeared on Wednesday — not simply to another category on a checklist of constitutional controversies, but also to the web of relationships that anchor the court and its enormous power to the rest of the government. The current Supreme Court term is still young. Given some other cases on the docket, most notably the challenges to the Bush administration's conduct of war on terrorism, it is a role that will again be put to the test.

Yep, O'Connor doesn't just checkoff our Constitutional rights one by one, she also sacrifices the independence of the judiciary on the altar of relationships. This is not laudable and the Times should lose its love-fest with O'Connor. One can only hope her "central role" and its focus "relationships" will get out of the way of those judges on the court that still remember their oaths to the Constitution and can actually read and apply those ten simple words: "Congress shall make no law....abridging the freedom of speech."

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