Tuesday, July 19, 2005

Update, two minutes later: I see Bush is expected to name his first choice for O'Connor's seat tonight. Word on the street is it's edith clement, about whom I know nothing. That's the same street that announced the Rehnquist and O'Connor retirements. A bit later, I know a bit about Clement, less about Edith Jones. She seems both mainstream and reasonable, and to have some conservative chops. Could be a decent choice, and one who we won't know how she rules until she rules. No tthe O'Connor sense of being a pragmatist, but in the we don't yet know much about her as a justice sense. All very speculative at 4 pm 5 hours before 9 pm.

Ed Foley at Mortiz has an interesting and thoughtful piece on what the next Justice should or might do about campaign finance. Hat tip Hasen. A pair of cases in the pipeline provide an opportunity to revisit McConnell and Valeo.
I have a quibble, though, with his position that a textualist court should defer to the legislative branches, as it did in McConnell.
Neither philosophical view can claim to be mandated by the intentions of those who authored the relevant clauses of the Constitution. Those who added the “freedom of speech, and of the press” provisions to the Constitution were not thinking about campaign finance regulations.
I think this is wrong. The speech, press, assembly, and petition clauses were added by the founders very much in regard to campaign regulation, or lack thereof. The Mikeljohn view of the first amendment is that its primary purpose is to protect political speech needed as a component of democracy. The better and wider view is that the constitution protects speech generally, even art of literature or smut that little to do with elections as such. The founders adopted the first amendment so that citizens could criticise the king, the government. Lilburne, Penn, Zenger, were cases about political speech. Thomas, concurring in McIntyre, tells this story.
Modern campaign finance laws make it illegal to criticise the king - to mention a candidate within 60 days of an election. It cannot be said that the founders were neutral about such regulations, and left these matters to the legislatures. Instead, they carefully prohibited congress from making it against the law to criticize congress, being aware that such a self-dealing approach would be a constant danger.
Valeo speaks to this in detail, and holds that court must employ exacting scrutiny, and be suspicious when congress puts it own interests ahead of the national interest, as it has done in McCain-Feingold and dozens of other incumbent protection acts.
The "reform" community hopes that the court will be asleep at the switch, mired in judicial passivity, and defer to congress when congress tries to do what the constitution has forbidden it. Mostly, the reform faction has been successful. The dissents in McConnell, however, show that the court is not always asleep.
For the most part, judged by my libertarian biases, Bush has been a terrible president. He is the devil we know; what Gore or Kerry or McCain would have done as president is unknown and unknowable. A wise or lucky pick in one or more judicial nominations could go a long way to rehabilitate his place in history. Eisenhower nominated Brennan by mistake. Marshall was nominated by LBJ, a thoroughly corrupt benevolent tyrant. I don't know who Bush will choose, and even knowing who, won't tell us what sort of justice they will become. I have hopes and fears.

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