Hillary: The Oral Argument
By Eva Rodriguez
For court geeks like me, it doesn't get much better than this: a weighty case of national importance, a couple of historic firsts and a star-studded cast of lawyers.
All of these elements come together on Wednesday, when the Supreme Court takes up the case of "Hillary: The Movie" -- formally known as Citizens United v. Federal Election Commission. This is a tough case -- pitting the First Amendment rights of corporate citizens to "speak" through contributions against a long-standing public policy aimed at limiting the potential of Big Business to affect -- or, less generously, to manipulate -- elections through enormous donations. The court -- if it acts expansively -- may well overturn a century's worth of prohibitions. I'm hoping it doesn't and opts for a more modest approach that recognizes legitimate First Amendment concerns while keeping in place long-standing court precedents that blessed some restrictions.
The theater surrounding the substance is irresistible. The case marks two firsts: the debut of Justice Sonia Sotomayor -- the first Hispanic confirmed to the court -- and the first argument by Solicitor General Elena Kagan -- the first woman confirmed to that post. Although it's novice appearances for both, don't expect them to hold back. Some court watchers are predicting that Sotomayor -- known as an aggressive questioner in her previous incarnation as a judge on the U.S. Court of Appeals for the 2nd Circuit -- comes out of the gate with the first question. (My money is on Justice John Paul Stevens, the senior "liberal" on the bench who may be retiring after this term. We'll see.) Kagan, the former Harvard Law School dean who has never appeared before the Supreme Court or any court of appeals as an advocate, is said to have performed impressively in a number of moot courts in preparation for the Hillary case. The conservative justices -- particularly Chief Justice John G. Roberts Jr. and Justice Antonin Scalia -- are likely to be very active in pressing Kagan on her defense of campaign finance regulations.
Rounding out the dramatis personae -- in addition to the other sitting justices -- are: Ted Olson, the former Bush solicitor general who successfully argued Bush v. Gore; legendary First Amendment lawyer Floyd Abrams; and former Clinton solicitor general Seth Waxman, who brilliantly argued the landmark Boumediene case that gave Guantanamo detainees the right to challenge their detentions in federal court. Olson is representing Citizens United, which produced "Hillary: The Movie;" Abrams is arguing on behalf of Senate Minority Leader Mitch McConnell, who joins Citizens United in opposing restrictions. Kagan is going to bat for the FEC; Waxman has been tapped to represent the interests of John McCain, the former GOP presidential nominee and a principal sponsor of the McCain-Feingold campaing finance reform law.
The court has allotted 80 minutes for argument. Olson and Kagan get 30 minutes each, with Abrams and Waxman each scheduled for 10. But don't be surprised if the arguments run over. Roberts -- unlike his predecessor and mentor Chief Justice William Rehnquist, a stickler for deadlines -- has been known to let advocates exceed time limits in cases where the justices seem not to have exhausted all of their questions. Here's hoping this is exactly what happens.
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