Today in the Community: November 14, 2011
on Nov 14, 2011 at 10:45 am
Today in the Community we take a step back from the Court’s decisions to invite comments on building an appellate practice, including a Supreme Court practice. What are the challenges facing a lawyer or law student trying to break into the field? What kind of experience is necessary or at least useful? Where are the realistic opportunities? Readers should submit not only their comments, but also their questions for members of the appellate bar to consider.
Some great comments from last week follow the jump.
Tony Mauro – 2 Promoted Comments
Two areas in which Supreme Court justices could be more forthcoming – for the benefit of the public, as well as the media – are personal health and recusals.
Justices tend to be stingy about informing the public about serious health problems. In several instances over the years, justices released limited information about hospitalizations or illnesses only after rumors circulated around town – suggesting that they might have said nothing at all if they could have kept their conditions secret. Contrast this with round-the-clock coverage of presidential ailments such as Ronald Reagan’s. I’m not suggesting going to that extreme for justices, but something more informative than usually occurs now would be a public-minded approach. Their health really does matter.
As for recusals, most justices never explain why they have decided not to participate in a particular case. Sometimes the reason is clear from their financial disclosure forms: they own stock in a company that is a party in the case. Sometimes there is a clear family connection. Justice Stephen Breyer, for example, won’t participate in a case that was handled at an earlier stage by his brother Charles Breyer, a federal district court judge in California.
But often, the press and public are left to wonder why a justice stepped aside in a case. There seems to be no good reason for secrecy in this area. I’ve heard some justices argue that they don’t explain their reasons because they would not want to pressure their colleagues into recusing in a similar situation. That seems to take collegiality too far. And it highlights the problematic fact that justices stay in or bow out of cases by their own lights, their standards, without review by anyone else.
Ciara Torres-Spelliscy – 1 Promoted Comment
The public policy response to Citizens United leaves the distinct impression that our politics are not capable of producing results that 85% or more of Americans want: more transparent elections. Clearly $135 million of dark money in the 2010 midterm wasn’t enough to motivate our Congress or our administrative agencies to act to bring clarity to money in politics.
The Federal Election Commission has been particularly hamstrung in responding to the new Citizens United reality. As FEC Commissioner Weintraub lamented earlier this year:
here we sit, almost eighteen months after Citizens United was announced, mired in gridlock over whether certain aspects of the case may be addressed in the rulemaking, over whether the Commission is willing to hear from the public on a part of the case that my colleagues would prefer to pretend is not there. Regrettably, we cannot even agree on whether certain questions may be posed, let alone reach the stage to consider the substance of any final rule. Disclosure, which I have always considered one of the core missions of the FEC, has become, like the villain in a children’s novel, the topic that may not be named.
That was in June. At this time in November, the FEC still has not acted to clarify what types of disclosures are required of corporate political spenders.
There appears to be a glimmer of light over at the FCC which announced it may require better disclosure for broadcast political ads. Industry efforts to quash this have already commenced.
This is why so many, including myself, have pinned their hopes on the independent SEC which has the capacity to bring transparency at least to our publicly-traded companies. (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1955950) Congressmen, economists, corporate law professors and investors with $690 billion worth of skin in the game have all urged the SEC to promulgate a new rule requiring disclosure of political spending by listed companies. (see http://www.sec.gov/comments/4-637/4-637.shtml) The second anniversary of Citizens United may come and go without new disclosure rules from any federal entity. If this comes to pass, it will show a grave political failure.
