Court: Corporations May Be People, But 'Judges Are Not Politicians'

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David Barrows, of Washington, D.C., waves a flag with corporate logos and fake money during a rally against money in politics outside the Supreme Court in 2013. Chip Somodevilla/Getty Images hide caption

itoggle caption Chip Somodevilla/Getty Images

David Barrows, of Washington, D.C., waves a flag with corporate logos and fake money during a rally against money in politics outside the Supreme Court in 2013.

Chip Somodevilla/Getty Images

If there's one thing that today's Supreme Court doesn't like, it's governmental overreach in regulating political money.

But if there's something the court likes even less, it's the increasing prominence of money in electing America's judges. That's how five justices came to uphold a rule in Florida that prevents judicial candidates from personally soliciting campaign cash.

Chief Justice John Roberts sided with the court's four liberals in rejecting an appeal by Lanell Williams-Yulee, a lawyer who, in 2009, ran for a county court seat in Hillsborough County. Yulee mailed voters a personal letter asking for money; she also posted it online.

The ruling affects the 39 states that elect judges – and it surprised many observers.

Law

Should Judicial Candidates Be Allowed To Solicit Campaign Money?

The Roberts court hasn't been reluctant to strike down money limits in elections for other offices. But the opinion in Williams-Yulee v. The Florida Bar finds that "Judges are not politicians."

The opinion allows states to limit the free speech of judicial candidates, due to a "compelling interest in judicial integrity." It finds a "regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity." And it reiterates previous findings that while the executive and legislative branches have their own spheres of influence, the judicial branch has only its reputation.

That reputation has been tarnished in recent years by the big money moving into judicial elections. Last year, nearly $300,000 flowed through a Washington-based group, in a bid to unseat the incumbent in a Missouri county court. (It failed.)

Recent trends show the limits of the Yulee decision. Six- and seven-figure sums go into independent expenditures. In the Missouri race, for example, the challenger received $100,000, but an outside group got nearly twice as much for attack ads and mailers.

Critics of big money in politics celebrated the decision. "Pragmatic" is how Matthew Menendez, of the Brennan Center for Justice at New York University, described it. "The majority looks at elections as they really happen, and what people really think about them," he said, comparing it to "the very theoretical approach taken in Citizens United and McCutcheon."

Citizens United is the 2010 case in which the court allowed corporations and unions to finance messages explicitly supporting or attacking candidates. The court majority said these "independent expenditures" wouldn't be corrupting because they would not be coordinated with candidates, while "the appearance of influence or access... will not cause the electorate to lose faith in our democracy." Since then, Super PACs and their billionaire donors have amassed significant political power.

McCutcheon, decided a year ago, eliminated an aggregate limit on how much a single donor could give to candidates in one election. It dismissed the real-world political impact, for example, of giving a congressional leader a large sum, to be distributed to lawmakers of the leader's choosing.

The Yulee opinion stops short of cutting off all contact between judicial candidates and donors. A candidate can still write thank-you notes.

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Court: Corporations May Be People, But 'Judges Are Not Politicians'

i

David Barrows, of Washington, D.C., waves a flag with corporate logos and fake money during a rally against money in politics outside the Supreme Court in 2013. Chip Somodevilla/Getty Images hide caption

itoggle caption Chip Somodevilla/Getty Images

David Barrows, of Washington, D.C., waves a flag with corporate logos and fake money during a rally against money in politics outside the Supreme Court in 2013.

Chip Somodevilla/Getty Images

If there's one thing that today's Supreme Court doesn't like, it's governmental overreach in regulating political money.

But if there's something the court likes even less, it's the increasing prominence of money in electing America's judges. That's how five justices came to uphold a rule in Florida that prevents judicial candidates from personally soliciting campaign cash.

Chief Justice John Roberts sided with the court's four liberals in rejecting an appeal by Lanell Williams-Yulee, a lawyer who, in 2009, ran for a county court seat in Hillsborough County. Yulee mailed voters a personal letter asking for money; she also posted it online.

The ruling affects the 39 states that elect judges – and it surprised many observers.

Law

Should Judicial Candidates Be Allowed To Solicit Campaign Money?

The Roberts court hasn't been reluctant to strike down money limits in elections for other offices. But the opinion in Williams-Yulee v. The Florida Bar finds that "Judges are not politicians."

The opinion allows states to limit the free speech of judicial candidates, due to a "compelling interest in judicial integrity." It finds a "regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity." And it reiterates previous findings that while the executive and legislative branches have their own spheres of influence, the judicial branch has only its reputation.

That reputation has been tarnished in recent years by the big money moving into judicial elections. Last year, nearly $300,000 flowed through a Washington-based group, in a bid to unseat the incumbent in a Missouri county court. (It failed.)

Recent trends show the limits of the Yulee decision. Six- and seven-figure sums go into independent expenditures. In the Missouri race, for example, the challenger received $100,000, but an outside group got nearly twice as much for attack ads and mailers.

Critics of big money in politics celebrated the decision. "Pragmatic" is how Matthew Menendez, of the Brennan Center for Justice at New York University, described it. "The majority looks at elections as they really happen, and what people really think about them," he said, comparing it to "the very theoretical approach taken in Citizens United and McCutcheon."

Citizens United is the 2010 case in which the court allowed corporations and unions to finance messages explicitly supporting or attacking candidates. The court majority said these "independent expenditures" wouldn't be corrupting because they would not be coordinated with candidates, while "the appearance of influence or access... will not cause the electorate to lose faith in our democracy." Since then, Super PACs and their billionaire donors have amassed significant political power.

McCutcheon, decided a year ago, eliminated an aggregate limit on how much a single donor could give to candidates in one election. It dismissed the real-world political impact, for example, of giving a congressional leader a large sum, to be distributed to lawmakers of the leader's choosing.

The Yulee opinion stops short of cutting off all contact between judicial candidates and donors. A candidate can still write thank-you notes.

Read More

It's Sotomayor V. Roberts In Supreme Court Death Penalty Drama

Supreme Court Justice Sonia Sotomayor grilled lawyers arguing the constitutionality of new lethal-injection cocktails. Win McNamee/Getty Images hide caption

itoggle caption Win McNamee/Getty Images

Lethal injection was the grim subject before the U.S. Supreme Court Wednesday. Specifically at issue: whether the drug combinations currently used to execute convicted murderers in some states are unconstitutionally cruel.

The issue comes to the court after three botched executions over the last year.

In 2008, the high court upheld the use of a three-drug cocktail used by most states to administer the death penalty. The first drug, sodium thiopental, is an anesthetic used to put the prisoner in a deep coma-like state. The second and third drugs paralyze and then kill the prisoner.

The problem for death penalty states is that the key drug used to anesthetize the inmate is no longer available in most places. Drug manufacturers and pharmacists have refused on ethical grounds to provide it for executions. The result is that states have tried other drugs. The most prominent is a drug called midazolam, which has been used in 15 executions.

i

Chief Justice John Roberts (R) and Associate Justice Sonia Sotomayor exit the front entrance of the Supreme Court building following Sotomayor's investiture ceremony in 2009. Jewel Samad/AFP/Getty Images hide caption

itoggle caption Jewel Samad/AFP/Getty Images

Chief Justice John Roberts (R) and Associate Justice Sonia Sotomayor exit the front entrance of the Supreme Court building following Sotomayor's investiture ceremony in 2009.

Jewel Samad/AFP/Getty Images

Inside the courtroom there were two dramas: One was the dispute over the death penalty, and how far states must go to impose it humanely. And second was a clash between Justice Sonia Sotomayor and lawyers for the state of Oklahoma, a clash so pronounced that Chief Justice John Roberts, without much subtlety, chastised Sotomayor for talking too much, at the expense of the lawyers' time.

Lawyer Konrad opened arguments, telling the justices that midazolam is not a barbiturate. It's not a drug that renders people insensate and keeps them in a deeply unconscious state, she said. Moreover, she asserted that it has a ceiling effect, meaning that no matter how much of it you give, the drug's effect levels off.

"Let's be honest about what's going on here," Justice Samuel Alito interjected. "This court has held that the death penalty is constitutional."

In view of that, Alito asked, "Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?"

Justice Antonin Scalia echoed that sentiment, saying that the best anesthetics to use in executions have been rendered unavailable by the "abolitionist movement putting pressure on" the drug manufacturers.

Justice Anthony Kennedy, whose vote could be critical in the case, asked just one question: Is it relevant that the preferred drugs are not available because of opposition to the death penalty?

Lawyer Konrad said it should have no relevance.

Justice Sotomayor interrupted, noting that there are other, painless ways of executing individuals. "It doesn't have to be a drug protocol," she said.

"I know that you'll get up and argue that those other ways are not constitutional either," Sotomayor added. "But the little bit of research I've done has shown that the reason people don't use the other methods [is] because it offends them to look at them."

Chief Justice Roberts, however, said his understanding is that states have moved to lethal injection as a "more humane" method of execution than "hanging, firing squad, electric chair," and the gas chamber.

"You're not suggesting that those other methods are preferable ... are you?" Roberts asked.

Konrad replied that death by gas chamber would appear to be painless but has been discarded because of its associations with the Holocaust.

After Konrad sat down, Oklahoma Solicitor General Patrick Wyrick rose to argue that midazolam, administered at high doses, protects the prisoner from feeling pain.

Justices Elena Kagan, Stephen Breyer and Ruth Bader Ginsburg all disputed the evidence of that presented in the courts below. They pointed to testimony from the state's own expert witness, noting that it was not only "wrong," but that the state had conceded as much.

Breyer said there was "zero" actual data cited by the witness for his conclusions. Kagan called the reasoning of the district court judge "gobbledygook." But it was Justice Sotomayor who openly dismissed Oklahoma's evidence as untrustworthy.

Addressing the state's lawyer, she said, "I am substantially disturbed that in your brief you made factual statements that were not supported by the cited ... sources and, in fact, directly contradicted [by those sources]."

Sotomayor then proceeded to lecture him, chapter and verse, with examples — so much so that when Wyrick's time had expired, Chief Justice Roberts said to the lawyer, "to an extent that's unusual even in this court, you have been listening rather than talking. And so I'm happy to give you an extra five minutes, if you'd like."

And he liked.

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It's Sotomayor V. Roberts In Supreme Court Death Penalty Drama

Supreme Court Justice Sonia Sotomayor grilled lawyers arguing the constitutionality of new lethal-injection cocktails. Win McNamee/Getty Images hide caption

itoggle caption Win McNamee/Getty Images

Lethal injection was the grim subject before the U.S. Supreme Court Wednesday. Specifically at issue: whether the drug combinations currently used to execute convicted murderers in some states are unconstitutionally cruel.

The issue comes to the court after three botched executions over the last year.

In 2008, the high court upheld the use of a three-drug cocktail used by most states to administer the death penalty. The first drug, sodium thiopental, is an anesthetic used to put the prisoner in a deep coma-like state. The second and third drugs paralyze and then kill the prisoner.

The problem for death penalty states is that the key drug used to anesthetize the inmate is no longer available in most places. Drug manufacturers and pharmacists have refused on ethical grounds to provide it for executions. The result is that states have tried other drugs. The most prominent is a drug called midazolam, which has been used in 15 executions.

i

Chief Justice John Roberts (R) and Associate Justice Sonia Sotomayor exit the front entrance of the Supreme Court building following Sotomayor's investiture ceremony in 2009. Jewel Samad/AFP/Getty Images hide caption

itoggle caption Jewel Samad/AFP/Getty Images

Chief Justice John Roberts (R) and Associate Justice Sonia Sotomayor exit the front entrance of the Supreme Court building following Sotomayor's investiture ceremony in 2009.

Jewel Samad/AFP/Getty Images

Inside the courtroom there were two dramas: One was the dispute over the death penalty, and how far states must go to impose it humanely. And second was a clash between Justice Sonia Sotomayor and lawyers for the state of Oklahoma, a clash so pronounced that Chief Justice John Roberts, without much subtlety, chastised Sotomayor for talking too much, at the expense of the lawyers' time.

Lawyer Konrad opened arguments, telling the justices that midazolam is not a barbiturate. It's not a drug that renders people insensate and keeps them in a deeply unconscious state, she said. Moreover, she asserted that it has a ceiling effect, meaning that no matter how much of it you give, the drug's effect levels off.

"Let's be honest about what's going on here," Justice Samuel Alito interjected. "This court has held that the death penalty is constitutional."

In view of that, Alito asked, "Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?"

Justice Antonin Scalia echoed that sentiment, saying that the best anesthetics to use in executions have been rendered unavailable by the "abolitionist movement putting pressure on" the drug manufacturers.

Justice Anthony Kennedy, whose vote could be critical in the case, asked just one question: Is it relevant that the preferred drugs are not available because of opposition to the death penalty?

Lawyer Konrad said it should have no relevance.

Justice Sotomayor interrupted, noting that there are other, painless ways of executing individuals. "It doesn't have to be a drug protocol," she said.

"I know that you'll get up and argue that those other ways are not constitutional either," Sotomayor added. "But the little bit of research I've done has shown that the reason people don't use the other methods [is] because it offends them to look at them."

Chief Justice Roberts, however, said his understanding is that states have moved to lethal injection as a "more humane" method of execution than "hanging, firing squad, electric chair," and the gas chamber.

"You're not suggesting that those other methods are preferable ... are you?" Roberts asked.

Konrad replied that death by gas chamber would appear to be painless but has been discarded because of its associations with the Holocaust.

After Konrad sat down, Oklahoma Solicitor General Patrick Wyrick rose to argue that midazolam, administered at high doses, protects the prisoner from feeling pain.

Justices Elena Kagan, Stephen Breyer and Ruth Bader Ginsburg all disputed the evidence of that presented in the courts below. They pointed to testimony from the state's own expert witness, noting that it was not only "wrong," but that the state had conceded as much.

Breyer said there was "zero" actual data cited by the witness for his conclusions. Kagan called the reasoning of the district court judge "gobbledygook." But it was Justice Sotomayor who openly dismissed Oklahoma's evidence as untrustworthy.

Addressing the state's lawyer, she said, "I am substantially disturbed that in your brief you made factual statements that were not supported by the cited ... sources and, in fact, directly contradicted [by those sources]."

Sotomayor then proceeded to lecture him, chapter and verse, with examples — so much so that when Wyrick's time had expired, Chief Justice Roberts said to the lawyer, "to an extent that's unusual even in this court, you have been listening rather than talking. And so I'm happy to give you an extra five minutes, if you'd like."

And he liked.

Read More

Japan's Abe Pushes The Pacific Trade Deal Onto Center Stage

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Japan's Prime Minister Shinzo Abe speaks during a joint press conference at the White House with President Obama on Tuesday. Abe is urging U.S. lawmakers to approve a trans-Pacific trade deal. Mandel Ngan/AFP/Getty Images hide caption

itoggle caption Mandel Ngan/AFP/Getty Images

Japan's Prime Minister Shinzo Abe speaks during a joint press conference at the White House with President Obama on Tuesday. Abe is urging U.S. lawmakers to approve a trans-Pacific trade deal.

Mandel Ngan/AFP/Getty Images

President Obama's plan for creating a Pacific Rim trade zone has been hovering in the wings, waiting for the right moment to demand attention.

On Wednesday, Japanese Prime Minister Shinzo Abe pushed it out on to center stage during a dramatic joint meeting of the U.S. House and Senate. He urged Congress to approve the proposed Trans-Pacific Partnership, or TPP.

"We must take the lead to build a market that is fair, dynamic, sustainable," he said. "The TPP covers an area that accounts for 40 percent of the world economy and one-third of global trade. We must turn the area into a region for lasting peace and prosperity."

Whether Abe's words swayed many lawmakers is not yet clear. But his personal lobbying did turn up the political heat. Abe wants Congress to approve the proposed trading partnership among 12 nations, including the United States and Japan.

This year began with Obama talking up the benefits of such a trade deal. But to get TPP written, he first wants Congress to renew his expired power to negotiate trade deals on behalf of the country. Once negotiated, such pacts can then be presented to Congress on a for simple approval, with no amendments.

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Business

Obama, Unions On Opposite Sides Of The (Fast) Track For Trade Deals

Sen. Orrin Hatch, the Utah Republican who chairs the Senate Finance Committee, said Obama is right to push for this negotiating power, more formally known as Trade Promotion Authority. Speaking at a Politico-sponsored event Wednesday, Hatch said that without it, other countries would be leery about negotiating.

He said New Zealand officials told him they need assurance that a completed deal could not be changed at the last minute by congressional amendments. Offering a "fast-track" to passage would be "very critical" to getting all trading partners on board, Hatch said.

Last week, Hatch's committee approved bipartisan trade-promotion legislation on a 20-6 vote. The House Ways and Means Committee also voted last week, 25-13 in favor.

So now here's the White House's to-do list:

1) Get the full House and Senate to approve the trade-promotion bill in coming weeks.

2) Wrap up negotiations with Japan and the other TPP countries.

3) Persuade Congress to approve the trade partnership in coming months.

But how likely is Congress to follow those steps?

Rep. Sandy Levin, D-Mich., was at the same event as Hatch, and he said most Democratic lawmakers are still not on the same page with Obama. "We're not there," Levin said. "Trade has been one of the reasons for middle-income stagnation."

Unions have been working extremely hard to block both "fast-track" renewal and TPP, saying they are not in the best interests of workers, whose wages have stalled as global competition has risen.

This week, AFL-CIO President Richard Trumka warned presidential candidates that unions will not support anyone who favors the White House trade agenda. "The labor movement opposes fast track," he said. "And we expect those who seek to lead our nation forward to oppose fast track, as well. There's no middle ground, and the time for deliberations is drawing to a close."

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