|
Senate
Democrats are furious with Chief Justice John Roberts and Associate Justice
Samuel Alito — and Alito’s silent State of the Union rebuke of the president is the least of their concerns.
Democrats
say Alito crossed the line when he mouthed the words “not true” during
President Barack Obama’s speech Wednesday night. But worse, they say,
both Roberts and Alito misled them during their confirmation hearings when
they represented themselves as jurists who would respect precedent.
“You bet they misled,” said Sen. Dick Durbin of Illinois, the
assistant majority leader and a member of the Senate Judiciary Committee.
At issue is the ruling in Citizens
United v. Federal Election Commission, the campaign finance
decision Obama was discussing Wednesday night when Alito mouthed his
objections.
In last week’s 5-4 decision, a majority of the justices —
including Roberts and Alito — ruled that the government cannot restrict
corporations and labor unions from spending general funds on advertising to
support or oppose specific candidates in federal elections. Some analysts
predict that the decision will open the door to a flood of campaign
advertising by corporations and unions leading up to Election Day — and
that Republicans will be the primary beneficiaries.
The decision overruled a 1990 case that upheld restrictions on corporate
spending as well as a 2003 ruling upholding a portion of the campaign finance
law written by Sens.
John McCain (R-Ariz.) and Russ Feingold (D-Wis.) that dealt with regulations on labor union and corporate
financing.
Supporters say that Alito, Roberts and the three other justices in the
majority simply returned to the original meaning of the First Amendment
— that the ruling was intended to uphold the right of free speech.
“I really believe that an injustice was done to the First Amendment and
political speech in the earlier decision,” said Senate Minority Whip
Jon Kyl (R-Ariz.), a Judiciary Committee member who has argued before the
high court. “I don’t think that’s activism.”
But Democrats see it otherwise — insisting that the decision represents
exactly the sort of precedent-bucking judicial activism that Roberts and
Alito rejected in sworn testimony during their confirmation hearings.
Referring to the memorable analogy in which Roberts compared himself to a baseball
umpire, Sen. Dianne Feinstein (D-Calif.) told POLITICO this week,
“He’s not somebody who just measures balls and strikes.
It’s been the most activist court that I’ve seen in my 17 years
in the committee.”
Sen. Tom Harkin (D-Iowa) said Roberts in particular “totally
misrepresented himself” in testifying about upholding precedent.
In a speech on the Senate floor Thursday, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) singled out Alito, saying
he had testified that the court has a “limited role” and should
not be overstepping its bounds and “invading the authority of
Congress.” In the Citizens United case, Leahy said that Alito and the
other justices substituted their preferences for the will of Congress,
calling the ruling the most partisan decision since the court stepped in to
stop the Florida presidential recount in 2000.
Roberts and Alito were confirmed by a Republican-controlled Senate, though
far more Democrats supported Roberts’s confirmation than Alito’s.
In
interviews, several previously supportive Democrats expressed frustration
with both men — particularly Roberts, who, many believed, would be more
of a consensus builder on the court.
“I seldom am critical of the Supreme Court or individuals on the
Supreme Court, I’m just disappointed at what has happened,” said
North Dakota Sen. Byron Dorgan, who voted for Roberts.
New Mexico Sen. Jeff Bingaman, another supporter of Roberts, said he thought
the chief justice would be “more of a mainstream justice” and has
been “disappointed on how conservative and ideological his decisions
have proven to be.”
Louisiana Sen. Mary Landrieu said that what she knows now “might have
influenced me a little differently” on Roberts but said she made the
“best decision I could” when she voted in 2005 to confirm him.
Conservatives regularly attack Democratic judges as “judicial
activists,” but Judiciary Committee member Sheldon Whitehouse (D-R.I.)
said, “It’s well past time” to call out conservative
justices for their own brand of judicial activism. He said that making such
arguments now could help the president if he has another chance to nominate a
justice to the court.
But Sen. John Cornyn (R-Texas), a former judge and current Judiciary
Committee member, said Obama and the Democrats were being
“hysterical” over the fact that the justices eliminated
restrictions on the First Amendment. Other Republicans noted that Alito and
Roberts never explicitly said they would follow every precedent, particularly
because the court periodically overturns its earlier decisions.
“If you look at the First Amendment of the Constitution — [the
ruling] was to restore it,” said Oklahoma Sen. Tom Coburn, another
committee member.
In his speech Wednesday night, Obama said the Supreme Court’s decision
“reversed a century of law to open the floodgates for special interests
— including foreign corporations — to spend without limit in our
elections.”
As Democrats rose to cheer, Alito shook his head and mouthed the words
“not true.”
Feingold, who sits on the Judiciary Committee, said it was
“inappropriate” and “not very judicial” of Alito to
protest — and he criticized the justice for failing to “maintain
his judicial demeanor.”
Sen. Ted Kaufman (D-Del.), another committee member, said in an interview
that Alito was “totally classless.”
Republicans said Obama started the fight — and that he shouldn’t
have used the State of the Union as an opportunity to go on the offensive
against the justices sitting before him.
Asked about the imbroglio, Sen. Jeff Sessions (R-Ala.), ranking member of the
Judiciary Committee, said sternly: “It was not proper for the president
of the United States to misrepresent the Supreme Court decision before the American
people. He’s supposedly a constitutional law professor — he ought
to know better.”
Even though Sen. Lindsey Graham (R-S.C.) disagreed with the court’s
decision, he called Obama’s criticism of the justices “awkward
and inappropriate.”
“I just thought it was a human reaction,” Graham said of Alito.
Through a representative, Alito declined to comment Thursday.
|
