J.J. Gass of the Brennan
Center passes on this transcript from Saturday's Weekend All Things Considered:
Weekend All Things Considered
National Public Radio
Saturday, March 29 2003
Copyright, National Public Radio
John Ydstie: With the war dominating the headlines, politicians don`t like
to talk about it, but they can`t afford to stop raising campaign money, and
they`re doing it this year under the provisions of the new McCain-Feingold
campaign finance law. The law is only in place tentatively because many questions
are being raised in the courts about its constitutionality. Indeed, within
minutes of President Bush signing the act into law, its opponents filed a
legal challenge. It was expected that by now, the case would be pending in
the Supreme Court. It`s not. NPR`s Nina Totenberg is here to tell us why.
Nina, the law has a process for resolving these legal issues. What is it?
Nina Totenberg: Well, it`s an expedited process. It provides for a three-judge
court composed of one appeals court judge and two district court judges to
look at the law initially, and then it goes directly to the Supreme Court.
Now this case was heard in early December--on, I think, the 3rd and 4th of
December--and at that time, the chief judge of the three-judge panel, Judge
Karen Henderson, who`s a court of appeals judge, indicated, volunteered in
fact, that she expected a decision out of her court by the end of January.
That obviously hasn`t happened. Now this is a very complicated case. Still,
to have it almost April and unresolved is quite extraordinary.
Ydstie: Mm-hmm. And why haven`t we gotten a ruling?
Totenberg: Well, initially, there was a lot of thought that this is just a
very hard case. There`s a record that`s more than 50,000 pages long, more
than two dozen provisions, but as the months have dragged on, my sources tell
me it`s become clear that part of the problem is, indeed, the collegiality,
or lack of collegiality, between Judge Henderson, the court of appeals judge,
and the two district court judges. Judge Henderson, I`m told, began drafting
an opinion on her own before the case was argued, in fact before all the briefs
were filed. And very important in these cases is what the lower court, that
court, says is the statement of facts. That`s what the Supreme Court`s going
to base its decision on factually.
Well, when the two district court judges got a look at her statement of facts,
my sources say, they were appalled. And even though they are very different
ideologically--one of them is relatively liberal, one of them relatively conservative--they
began working together feverishly to try to make a statement of facts that
they could agree on because they found Judge Henderson`s unacceptable and
much of what Judge Henderson wrote unacceptable.
Relations between the district court judges and Judge Henderson are said
to be pretty frosty at this point. The decision, when it comes out, I`m told
will be almost a thousand pages long, when and if it comes out. And so we`re
in a bit of a legal mess here with the Supreme Court waiting.
Ydstie: Mm-hmm. I don`t want you to reveal your sources, but I presume it`s
not the judges that are talking about this.
Totenberg: No, let me make this very clear: None of the judges on this panel
talked to me, but when there is this kind of holdup, there starts to be a
leak in the normally sealed sieve at these courts. And I`ve talked to a lot
of people about this who are very knowledgeable and I`m confident that this
is a story at this point worth getting on the air.
Ydstie: Mm-hmm. And time is of the essence because people want to raise campaign
money.
Totenberg: Political Washington is getting pretty desperate because they don`t
know the rules of the game. Over at the Supreme Court, I think it`s fair
to say there is apparently even some annoyance because the court`s coming
to the end of the term. They`re going to have to schedule this late in the
term. This is, as I said, an extremely complex case. There are at least suspicions
that one or more justices might want to retire this summer. So this is getting
ugly.
Ydstie: Thanks, Nina.
Totenberg: Thank you, John.
Ydstie: NPR`s Nina Totenberg.
Copyright, National Public Radio
I am not sure which is more astounding: the difficulties that the judges are
allegedly having or the leaks to Nina Totenberg. I am also not relishing the
thought of reading a 1,000 page ruling!
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html