So far, Bernie Sanders’ major function in the Democratic presidential nomination race is as a gauge of how badly Hillary Clinton is doing. The same function could be served by a wooden spoon or an Elmo doll, but Bernie will do: as Hillary’s machinations and lies about them sloooowly convince even Democrats that she should not be allowed near any office that includes a button labeled “Power,” he rises in the polls. So far, this had not required anyone actually thinking about Sanders himself, but the contents of a recent speech to a throng in Portland, Oregon should be cause for alarm. Sanders managed to announce his willingness to rig the Separation of Powers and eliminate judicial independence as well as his contempt for judicial ethics and his ignorance of how the Supreme Court works, all at once. All of this indicates that Sanders really isn’t qualified to be a U.S. Senator, much less President.
In his speech, to the sounds of cheers, Bernie shouted, “My nominees to the U.S. Supreme Court will in fact, have a litmus test and that test will be that they will have to tell the American people that their first order of business on the Supreme Court will be to overturn Citizens United.” Those cheers are interesting. My guess would be that not a single member of the audience, and quite possibly not even Bernie himself, has read the decision. Most people who turn red in the face and twitch when one mentions Citizens United do so because they think that it stands for the proposition that “corporations are people.”
It actually stands for the rather reasonable principle that the First Amendment protects the rights of people who band together for common purposes, and who wish to use such organizations to express their opinions regarding elections. The decision forbade the government from restricting independent political expenditures by a nonprofit corporation, and by extension to for-profit corporations, labor unions and other associations. Among other things, the law that was struck down in the case allowed the Federal Government to ban books and films based on content.
Progressives don’t like free speech when it gets in the way of the Greater Good, and their intractable hatred for Citizens United v. Federal Elections Commission is one symptom of this malady. That is, this is true for those who have actually any clue what the decision really says; the rest are just ignorant. The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties, which remain illegal in races for federal office, for example. I’d bet my head that 99% of Bernie’s Oregon fans think otherwise.
Probably Bernie too.
The American Civil Liberties Union—that well-known bastion of knee-jerk conservatism—supports Citizens United, and there’s a good reason for that: it’s a pro-free speech ruling:
“We understand that the amount of money now being spent on political campaigns has created a growing skepticism in the integrity of our election system that raises serious concerns. We firmly believe, however, that the response to those concerns must be consistent with our constitutional commitment to freedom of speech and association. For that reason, the ACLU does not support campaign finance regulation premised on the notion that the answer to money in politics is to ban political speech“
…which is what the law struck down by the ruling effectively did.
Banning this particularly odious form of speech—to Bernie and other progressives–is so important that he will require, he says, any aspirant to be nominated to serve on the Supreme Court to publically commit to an anti-Citizens United case ruling before he or she ever reads a brief. Nominees would have to “tell the American people” what their commitments were, presumably at a press conference or through a signed statement made available to the press. (Twitter would probably suffice.)
In envisioning such a scenario, Sanders reveals some alarming things. One is that he has no idea what judges do. Another is that he doesn’t comprehend judicial ethics. A third is that after all these years in the Senate, Sanders is still ignorant of the Separation of Powers and the need for independence and integrity in the Judiciary.
I suppose a fourth would be that it really is helpful to have a law degree if one is going to run for President. Mike Huckabee is making that horrifying clear on the Republican side.
See, Bernie, a judge cannot swear that his or her “first order of business” is to do anything, because the Court rules on cases. Absent a case, the Court can’t address Citizens United, or abortion, or anything else. Sanders seems to be under some delusion that the Supreme Court can just wake up some morning and decide, “What a perfect day to impose new restrictions on political speech!” No, the Court can’t do that even if it wanted to, and a single Justice definitely can’t do that. The right lower court case has to come along that raises the issues that parallel Citizens United, the Court has to vote to review it, and then there is that whole messy process of letting both sides argue their case. Getting to that “first order of business” may take years, or never come up at all.
Moreover, as every first year law student is taught and every legitimate Supreme Court nominee must know and accept, previous decisions of the Court are accorded an automatic benefit of the doubt, called the principle of stare decisus. The Latin term means “to stand by that which is decided,” and it is what makes the law necessarily predictable, reliable, and stable, rather than fluctuating with the whims of fashion and the the ballot box. When a legally disputed principle has been settled by a decision, it constitutes a precedent that is respected even by Justices who disagree with the decision and would have decided the particular case differently. There are exceptions, of course, and cases are over-ruled, particularly cases that clash with new developments and evolved ethical thinking. Brown v. Board of Education over-ruled the precedent that “separate but equal,” segregation, was consistent with the Constitution, because the civil rights movement had taught us otherwise. The decided principle that Bernie Sanders would rig the system to over-rule is, as the ACLU puts it…
“Any rule that requires the government to determine what political speech is legitimate and how much political speech is appropriate is difficult to reconcile with the First Amendment. Our system of free expression is built on the premise that the people get to decide what speech they want to hear; it is not the role of the government to make that decision for them.”
Meanwhile, Rule 2.10(B) of the ABA Model Code of Judicial Conduct prohibits a judge from making pledges, promises, or commitments inconsistent with judicial impartiality in connection with cases, controversies, or issues likely to come before the court. This is a sound and essential rule that goes to the heart of judicial integrity. If a judge pre-judges a case he or she hasn’t even considered yet, than the judge isn’t judging at all. But Bernie thinks he can pack the Court with single-issue, Bernie clones in robes and with law degrees. Well, he’ll need to find judges from states that don’t have 2.10 (B) in their judicial codes of ethics, and that will take some otherwise excellent judges out of contention. Bernie, however, believes that crushing the ability of organized citizens from making their views known in an election is the only legal issue that matters.
As former circuit judge Raymond McKoski tartly points out at the Legal Ethics Forum, once on the Court the Bernie Zombie Justices would be subject to the federal disqualification statute which wisely—unless you don’t care about judicial integrity and independence, that is, and Bernie doesn’t—requires a judge’s recusal from cases in which his or her impartiality might reasonably be questioned. Supreme Court Justices decide their own recusal motions, however, so one willing to compromise judicial ethics by pre-judging a case before he has read and heard the arguments would surely be willing to ignore the spirit of the statute.
Unfortunately for Bernie, a Justice he otherwise approves of, Elena Kagan, would recuse herself in a Citizens United-reviewing case (she argued Citizens United on the losing side as Solicitor General) because, as she has shown, she’s an ethical judge who believes in the maintaining the integrity of the Court and the judicial system. Bernie doesn’t want any more Justices like her on his court.
Sanders is every bit as unqualified and ignorant as Donald Trump, Ben Carson and Mike Huckabee; he’s just unqualified and ignorant in ways that match the biases of the news media. His deficits, however, are even less excusable than theirs: as a U.S. Senator, he has voted for and against Supreme Court nominees without understanding the Court or how it relates to our Constitutional government.
That’s a disgrace.
Pointer: Legal Ethics Forum
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