Supreme Court justices ought to aspire not to be influenced by their confirmation hearings when they decide cases.  Roberts and Alito are especially likely to believe that, which is presumably one reason they took pains to avoid giving their opinions on issues they are likely to face.  They would seem even less likely to be influenced by senatorial silences (unless either of them has an unsuspected Derridaen streak!).  For the very little they are worth, here are some comments I made to Jim Bopp in an e-mail this morning about Roberts and Alito and campaign finance:
 
         My best guess--and I am even more skeptical of my own predictions than I am of others'--is that those two are likely to want to stay more or less within the Buckley framework.  They both seem to be incrementalists by nature and, especially this early in their careers on the Sup. Ct., seem unlikely to want to make big waves in an inordinately complicated area that neither of them is likely to know much about.  If that is right, then the chances of the Vermont spending limits being upheld should be fairly small.  Striking down the low contribution limits in Vermont may also be unlikely, though perhaps they will be willing to scale back Shrink Missouri a bit (as I think they should).  Your Wisconsin case will be very interesting.  I think there is a pretty good chance they will not want to rule out as-applied challenges.  Since McConnell is ambiguous on that, ruling them out would be an extension of McConnell.  Certainly, if you lose on that point, that will be a sign !
 of a very permissive doctrine for the foreseeable future.  Assuming they permit as-applied challenges, I imagine you have a good chance of winning on your facts, but it is not a slam-dunk.
 
 
          Best,
 
          Daniel Lowenstein
          UCLA Law School
          405 Hilgard
          Los Angeles, California 90095-1476
          310-825-5148

________________________________

From: owner-election-law_gl@majordomo.lls.edu on behalf of Edward Foley
Sent: Fri 1/13/2006 3:33 PM
To: Rick Hasen
Cc: election-law
Subject: Re: Alito (also Roberts) hearings/campaign finance


Rick,

I was unclear: I didn't mean to suggest that the Senators don't have an opinion, rather that they did not attempt to defend their handiwork or their prerogative to legislate in this area.  If (as you say) many of them would be happy to be told by the Court that they have little or no authority to regulate campaign money, that would support my tentative suspicion that the Justices might feel less of an obligation to feel deferential to Congress's regulatory prerogatives in this area.  From my watching of Judge Alito's hearing, many Senators -- including some Republicans (DeWine, Grassley, Hatch, Specter, etc.) -- passionately defended Congressional authority to enact laws in such areas as disability law, qui tam actions, environmental protection, machine gun control, and so forth -- but not a word about the right (and need) for Congress to have the authority to police the problem of political money and campaign corruption.  I'm just wondering whether that silence speaks volum!
 es and what, if any, impact it will have in the consideration of the two pending cases.

Thanks by the way for alerting me to the exchange over McConnell in Chief Justice Roberts' hearings,

Ned



At 06:14 PM 1/13/2006, Rick Hasen wrote:


	Ned,
	Why do you assume that if the Senators failed to ask about campaign finance it is because they don't have an opinion about the topic?  It could be that they would be happy for the Court to back away from McConnell and toward a deregulatory position.  (That's probably not true for Feingold, but could be true for most other Democratic senators on the committee).
	I have not heard about any questions asked of Judge Alito (I did not listen to all of the hearings), but there were questions asked of Chief Justice Roberts about McConnell.  Here is my blog report on that:
	http://electionlawblog.org/archives/003998.html
	Rick
	
	
	Edward Foley wrote: 
	

		To my knowledge, no Senator asked Judge Alito a question about campaign finance. Is this accurate?  Also, does anyone recall whether (or the extent to which) the Senators asked Chief Justice Roberts about campaign finance at his hearings?
		
		If the correct answer is that campaign finance did not surface in the questioning of either new Justice (and assuming that Judge Alito is confirmed), does anyone have a view whether the absence of this topic at the hearings will have either a conscious or subconscious impact on either Justice's consideration of the pending cases (assuming, again, that Justice Alito is able to sit on the Vermont case)?  Another way to ask this question might be: if the Senators don't care about this topic -- in comparison to abortion, presidential power, even one-person-one-vote, etc. -- then would these Justices be more psychologically presupposed to invalidate campaign finance legislation they considered constitutionally problematic (and less psychologically presupposed to defer to Congress on this topic)?
		
		Ned
		
		
		
		Edward B. Foley
		Director, Election Law @ Moritz, and
		Robert M. Duncan/Jones Day Designated Professor of Law
		
		The Ohio State University, Moritz College of Law 
		phone: (614) 292-4288; e-mail: foley.33@osu.edu
		http://moritzlaw.osu.edu/electionlaw/



	-- 
	Rick Hasen
	William H. Hannon Distinguished Professor of Law
	Loyola Law School
	919 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 <http://www.lls.edu/academics/faculty/hasen.html> 
	http://electionlawblog.org
	


Edward B. Foley
Director, Election Law @ Moritz, and
Robert M. Duncan/Jones Day Designated Professor of Law

The Ohio State University, Moritz College of Law 
phone: (614) 292-4288; e-mail: foley.33@osu.edu
http://moritzlaw.osu.edu/electionlaw/