First Up For High Court In 2010: Campaign Finance

Stephen Breyer, Sonia Sotomayor, Clarence Thomas, Antonin Scalia and John Roberts. i i

Sonia Sotomayor is not expected to dramatically shift the tone of a bench that also includes (clockwise from top) Stephen Breyer, Clarence Thomas, Antonin Scalia and Chief Justice John Roberts. Mandel Ngan/AFP/Getty Images hide caption

itoggle caption Mandel Ngan/AFP/Getty Images
Stephen Breyer, Sonia Sotomayor, Clarence Thomas, Antonin Scalia and John Roberts.

Justices of the U.S. Supreme Court pose for their official photo in Washington, D.C. Front row, from left: Anthony Kennedy, John Paul Stevens, Chief Justice John Roberts, Antonin Scalia and Clarence Thomas. Back row, from left: Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

Mandel Ngan/AFP/Getty Images

When the Supreme Court reconvenes in January, the first big case it is expected to decide could redefine the role of corporations in financing federal campaigns. The decision is expected to reflect the will of the conservative justices, who remain in the driver's seat on the high court.

Elsewhere in the judicial system, control is divided between the parties, and partisanship has led to delays in filling judgeships.

In what is expected to be the court's first big decision, "what's at stake is the way we finance campaigns — and have for 100 years," NPR's Nina Totenberg tells Steve Inskeep.

The case's outcome will determine corporations' ability to make political contributions to specific candidates in an election. It hinges on the assertion that corporations have First Amendment rights.

"It does look very much as if there may be five justices ready to sign on to that proposition," Totenberg says.

If the law regulating such corporate donations were overturned, she says, "the effect on sort of the role of money in politics, in our national life, and the ability to control that money — you can see that the door would suddenly be wide open."

The justices have already heard oral arguments in the case — all that's left is to hear their decision, which is believed to be imminent. The result could help to shape the upcoming 2010 congressional elections.

Two other high-profile cases the justices will soon decide revolve around finance and corruption. One could revoke the Sarbanes-Oxley law, meant to make companies' financial situations more transparent; another would affect the "honest services law," commonly used in corruption cases against corporate officers and public officials.

Judicial Appointments

Three new justices have joined the Supreme Court in the past four years. "But two of those new justices are very conservative justices — far more conservative than the people that they replaced," Totenberg says.

"The court is not likely to change ideologically unless some very conservative member of the court retires — and we don't see that anywhere in our future," she says.

As for the lower courts — where a higher rate of turnover might be expected to translate into a faster change under a new administration — Totenberg says that President Obama has been "slow off the mark."

Totenberg says the president's Republican opponents have been more devoted to blocking Obama's nominees than the administration has been interested in making appointments.

"He's made 30 judicial nominations overall," Totenberg says, "compared to President Bush, who had made 52 at this time."

And Obama's success rate trails that of his predecessor, as well.

"He has won confirmation for 10 judges so far — three appeals court judges and seven district court judges," Totenberg says. In contrast, Bush had 22 judges confirmed by this point in his tenure.

A Missed Opportunity?

The holdup, Totenberg says, is that Republicans are using procedural rules to avoid a floor vote on the nominees — most of whom have already cleared the Judiciary Committee.

The number of judicial vacancies has doubled during President Obama's time in office — the result of the slowness to nominate judges and the Republican strategy to minimize the president's effect on the courts.

And Totenberg doesn't see the situation changing before the upcoming congressional elections.

"The Republicans will assume — probably rightly — that they're going to gain Senate seats," allowing them to stall Obama's nominations further, she says.

Noting that the Obama administration is losing a chance to affect the judiciary, Totenberg says, "Their big window is the first, probably, year and a half — at the most. And they're more than halfway through that, and they've blown it."

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