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February 19, 2010

BILL MOYERS: That was eleven years ago. The flow of corporate money to judicial elections was then just a trickle, on its way to becoming a river which would soon become a flood. Since our report in 1999 for example, nine justices currently serving on the Texas Supreme Court, have raised nearly $12 million dollars in campaign contributions.

The race for a seat on the Pennsylvania Supreme Court last year was the most expensive judicial race in the country, with more than four and a half million dollars spent by the Democrats and Republicans.

Now, with the Supreme Court's Citizens United decision, that corporate muscle just got a big hypodermic full of steroids.

Here to talk about the Supreme Court decision and judicial elections is a journalist well-schooled in the law. Jeffrey Toobin is himself a lawyer and a former assistant United States attorney who covers legal affairs as a staff writer at the "New Yorker" magazine and is senior legal analyst for CNN.

For the "New Yorker," Toobin has profiled those two Supreme Court justices I interviewed for "Frontline:" Anthony Kennedy and Stephen Breyer, as well as Chief Justice John Roberts in this article headlined, "No More Mr. Nice Guy."

He's also the author of this bestseller, "The Nine: Inside the Secret World of the Supreme Court," the latest of his five books on politics and the law.

I've said this before in the name of full disclosure and I'll say it again: I have known Jeff Toobin since he could barely reach this tabletop. Welcome back to the Journal.


BILL MOYERS: You just heard Justice Kennedy interviewed 11 years ago when he said to me, "Big problem. You know, this problem of money and judicial elections." And now he's just written the majority opinion Citizens United, taking the lid off of what corporations and unions can spend in elections. Do you think he has any understanding of the implications for judicial elections of the decision he just wrote?

JEFFREY TOOBIN: Well, I think he understands it. But what the Constitution is always about is balancing interests that sometimes conflict with each other. And under his interpretation and that of four other justices, he says that corporations have these close to absolute free speech rights, so even though that may lead to additional corruption of our elections, that's what the Constitution commands. But that's not the whole story here. And in fact, the government has regulated political speech by corporations for 100 years, since 1907. So it's not like free speech is an on-off switch. We have lots of people in our society who have some free speech rights, but not complete rights. Students, prisoners, government employees. They all have some free speech rights and not others. Corporations. But to participate in the political process, there have been limits for decades. And that hasn't been a problem until now.

BILL MOYERS: What do you think this recent decision means for judicial elections in particular?

JEFFREY TOOBIN: Well, I think judicial elections are really the untold story of Citizens United, the untold implication. Because when the decision happened, a lot of people said, "Okay. This means that Exxon will spend millions of dollars to defeat Barack Obama when he runs for reelection." I don't think there's any chance of that at all. That's too high profile. There's too much money available from other sources in a presidential race. But judicial elections are really a national scandal that few people really know about. Because corporations in particular, and labor unions to a lesser extent, have such tremendous interest in who's on state supreme courts and even lower state courts that that's where they're going to put their money and their energy because they'll get better bang for their buck there.

BILL MOYERS: Well I know you don't read minds, but is Kennedy unaware of what this could mean for, well, he just said the integrity of our judicial system?

JEFFREY TOOBIN: Well, he's more aware than practically any justice on the court because just last year he wrote an opinion about the abuse of money in judicial elections.

BILL MOYERS: That was the West Virginia case where he said a Supreme Court judge in West Virginia must recuse himself, remove himself, from deciding a case involving a campaign contributor who'd given $3 million to the judge's campaign.

JEFFREY TOOBIN: Right. I mean, the facts in that case were so egregious that the court, which really doesn't like to get involved in specific races, couldn't look away. It was so awful. As you said, there was a $50 million judgment against a coal company.

The CEO of that coal company, knowing that case was coming up for appeal, knowing how divided the court was, put $3 million of his own money into supporting one candidate. That candidate won. That candidate was the deciding vote in the case. And the losing side said, "Look. This is a violation of the law, violation of due process of law." And the Supreme Court, in an opinion by Justice Kennedy, said the appearance of that justice in that case was just so bad, even though they couldn't prove he'd been effectively bribed, they overturned the case.

BILL MOYERS: What Justice Kennedy said, by the way, it's just one line in the Citizens United case. He said that "It's important for the judge to recuse himself. But it's also important that we not limit the political speech of the person who is contributing to his campaign." So he's making some kind of distinction there.

JEFFREY TOOBIN: Well you know, again, apparently, to use a famous phrase associated with the Supreme Court, you know, he knows it when he sees it. Like, what's too much of a campaign contribution? You know, when does the money get so egregiously out of whack that you have to, the judge has to recuse himself? But, you know, the logical extension of that argument is that they should all recuse themselves, and obviously we can't have a system like that. So that's why, though the West Virginia case is illustrative, recusal is only an answer in a handful of cases. It's a systemic problem, not an individual problem.

BILL MOYERS: What do you think as an attorney and as a journalist about that decision? The Citizens United decision?

JEFFREY TOOBIN: One of the things about what it used to mean to be a judicial conservative was that you believed in judicial restraint. You believed in judges deferring to the elected branches of government, whenever possible.

George W. Bush always used to say, "I want judges who interpret the law, don't legislate from the bench." This was judicial conservatism in an activist mode. Because here, Citizens United was evaluating the McCain-Feingold bill, a big part of it, which was passed by Congress very recently, signed by President Bush.

BILL MOYERS: 2002, in fact.

JEFFREY TOOBIN: Right. It's signed by President Bush. Parts of it had been approved by the Supreme Court before. But the conservative majority said, "We know better." When you had justices like John Marshall Harlan, who was appointed by President Eisenhower, or Justice Potter Stewart, who was also appointed by President Eisenhower, they did believe in backing away from what the legislative branches did.

This seems a much more agenda-driven conservatism, where if the legislature doesn't do what they want and interpret the Constitution the way they want, they are going to impose it. And that's what's so striking about this opinion is that this is exactly what liberals used to be accused of doing, which is rewriting the laws to favor the side that they want. But here, you have supposed conservatives doing it.

BILL MOYERS This Court did not-- this majority did not have to resolve this case this way? It could have resolved the Citizens United case very narrowly on whether that "Hillary: The Movie" film could have been denied access to cable channels before the election. But the Court reached out and said, "We want this case." And they gave a much broader interpretation to it than they needed to do. Do you think that was Justice Kennedy, or was that the machinations of Chief Justice Roberts?

JEFFREY TOOBIN: I don't want to get too much into the weeds here. But, if you saw how this case was dealt with in internal Supreme Court matters, it was very extraordinary. They argued at once on the narrow issue of, "Does it apply to this one-time, pay-per-view cable possibility?"

And then they asked for re-argument. This court almost never asks for re-argument and they asked for re-argument on the much broader issue of, you know, "Do corporations have free speech rights and does McCain-Feingold violate those rights?" I think John Roberts' fingerprints were all over the change here. And yes, this opinion was written by Justice Kennedy. But I think the moving force behind it was the Chief Justice.

BILL MOYERS: But what do you think was behind his decision?

JEFFREY TOOBIN: I think he thinks that that First Amendment law, when it comes to corporations, has been off in a wrong direction. And he saw this case, wanted to change it, and used this case as a vehicle. I think it means that there are entire areas of the law that he believes need to be changed and need to be fixed and need to be improved.

BILL MOYERS: Irrespective of what he said about precedent?

JEFFREY TOOBIN: You know, I think the words will live in infamy that he said in his famous opening statement in his confirmation, where he said, "I'm just like a baseball umpire. I don't make the rules, I just call balls and strikes." And he talked about his love and respect for the rule of precedent.

CHIEF JUSTICE JOHN ROBERTS: Nobody ever went to the game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath.

JEFFREY TOOBIN: He's got an awfully expansive view of what baseball umpires do. He's acting a lot more like the commissioner of baseball than an umpire. Because if you look at all these areas, he's trying to make big changes. You know, he's now been on the Court for a substantial amount of time, five years.

BILL MOYERS: Almost five years.

JEFFREY TOOBIN: Five years. Abortion rights. Affirmative action and racial preferences. Now, First Amendment rights for corporations. He is interested in dramatic and immediate changes in these areas. Now he doesn't always have five votes. But he's trying to get them every case.

BILL MOYERS: You said in that article that you wrote for the "New Yorker" last year that Justice Roberts is a doctrinaire conservative who in four years on the Court, now five, has served the interest and reflected the values of the contemporary Republican Party.

In practical terms, you said, in every major case he has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and now the corporate defendant over the individual plaintiff. What, ultimately, does a series of decisions that he has guided through the Court by five to four majorities mean for law and politics in this country?

JEFFREY TOOBIN: The Court is subject to presidential and Senate prerogative, and there is always going to be turnover. But if Roberts can keep mustering his majority, it's going to mean it's harder to sue for basically any kind of damages. And a classic example of that is in the environmental movement, where environmentalists in the last completed Supreme Court term lost every single case that was before the justices.

You know, the corporate cases get less publicity, except Citizens United than the abortion cases or the free speech cases. But it is extraordinary how often corporations are winning in this Court. The, you know, anti-trust enforcement is being very much limited by this Court. The regulatory power of the state is being limited by this Court. So, you know, if you look at what the agenda is of the contemporary Republican Party, it matches completely what the Roberts agenda is at the Supreme Court.

BILL MOYERS: This doesn't surprise you, does it? Because in his private practice Mr. Roberts mostly defended corporations against individuals who had sued them. So it's not surprising that he would turn out to be a good friend on the Court of corporate America.

JEFFREY TOOBIN: No. You know, I guess when I was covering his appointment, one of the peculiar things about Supreme Court appointments is you don't really know a lot about what people believe. Because he hadn't been a judge for all that long. But everyone who knew Roberts well said to me, "Just wait. Just wait and see how conservative this guy is."

BILL MOYERS: Are we naïve to expect that the playing field should be more even than it will be when corporations have First Amendment rights to spend as much money as they want to on either a judicial or a political election?

JEFFREY TOOBIN: Well, that goes for all elections and not just judicial elections. And it's only worse in judicial politics because those races don't get a lot of attention. You know, when in a U.S. Senate race--


JEFFREY TOOBIN: --a lot of people sort of know where the money's coming from and the news media covers it. The news media doesn't even cover these judicial elections very much. So all people see are these horribly distorted campaign ads. And mostly, the effective attack ads. And, you know, one of the things Congress is thinking about doing to try to salvage something out of Citizens United is at least require identification of the sources of the money for ads.

BILL MOYERS: Disclosure of the people who are paying?

JEFFREY TOOBIN: Right. We're all now familiar with the, "I'm John McCain and I approve this message." If you have a system that says, "I'm Lloyd Blankfein and I'm the CEO of Goldman Sachs and I approve this message," maybe that would have some restraining effect on Citizens United.

BILL MOYERS: But they can still put their money, if they don't want to do it explicitly or directly, they can put their money into the Chamber of Commerce, whose spending has been going up and up and up, and they don't identify the sources.

JEFFREY TOOBIN: The sources. And Congress is aware of this problem. I don't know if they can address it, but the issue of straw man and straw sources and covering up where the money comes from. They're aware of it. They're trying to address it. We'll see if they make any progress.

BILL MOYERS: Do you think a bad situation is going to get terribly worse?

JEFFREY TOOBIN: I do. And I think it will be beneath the radar, which is too bad. Because these judicial elections are so bad, but not a lot of people pay attention to them. Interestingly, one person who is trying to draw a lot of attention to judicial elections is Sandra Day O'Connor, in retirement, who has generally stayed away from the criticizing the Court, but was outraged at the Citizens United opinion in for just this reason. Because she knows. She has seen what this does to the judicial process. The money.

BILL MOYERS: Because she was in politics in Arizona before she went to the Court.

JEFFREY TOOBIN: Right. And Arizona actually has a pretty good system for merit selection of judges rather than elections. And conservatives in Arizona are trying to get rid of that system and make it a much more political system.

BILL MOYERS: Do you think that her idea of merit selection for judges, that somehow the governors of the state, with the help of disinterested parties, would pick a group of candidates for the State Supreme Court, do you think merit selection is viable?

JEFFREY TOOBIN: Yeah. And it works well in a lot of states. It's the Missouri plan, sometimes, Missouri has had it, although it's under challenge there. Nothing's perfect. But when you have bipartisan groups of people, screenings, or even governors alone picking judges, it almost invariably produces a better, fairer, more qualified, less partisan judiciary than when voters do it.

BILL MOYERS: But governors are political figures. It doesn't take politics out of the process, does it?

JEFFREY TOOBIN: And nor should it. And politics is not out of the appointment of federal judges. But there is a tradition of excellence among federal judicial appointees, and I think that's true of Democratic and Republican nominees alike. There's a tradition of eminence in the community that is required before you get that nomination. And I think in states where governors pick, look, nothing is perfect. But--


JEFFREY TOOBIN: --by and large, it's a better system than elected judges.

BILL MOYERS: Jeffrey Toobin, thank you for being with me on The Journal.

JEFFREY TOOBIN: Great to be with you, Bill.

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