Democracy: What’s It Worth If You Can’t Buy It?

Fortunate are we–or maybe “blessed” is a better word–to have a Supreme Court that defends the right of corporations to be heard above the clamor of the masses. This morning’s decision from our highest tribunal is titled Citizens United v. Federal Election Commission (183-page PDF file). It could be called, “Democracy: What’s it worth if you can’t buy it?” I, for one, look eagerly forward to seeing companies like Chevron, like Halliburton, like Lockheed–I’m sure you’ve got your own list of favorites–burst the shackles of campaign-finance law and express themselves. Free at last!

Crybabies like high court dissenter Justice John Paul Stevens protest that corporations are fundamentally different from human individuals. For instance, they can’t vote or run for office. Further: “Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process.”

Yawn. Tell it to Teddy Roosevelt, Stevens. That’s how old that kind of thinking is. And if corporations can’t vote or run for office, well maybe it’s time for the court to change that, too. Precedents are for sissies–and bonfires.

Read the decision, kids, and the dissent. This is where our democracy, such as it is, is headed.

Supreme Court Rope-a-Dope

I have to say, I’m enjoying not listening to the Sandra Sotomayor confirmation hearings. I suppose that’s a conundrum: How could I possibly know that not doing something is a feel-good experience? Well, the answer to that puzzler is that I have listened to short sections of the hearings. They’re unbearable. They’re the forensic equivalent of Muhammad Ali’s “rope-a-dope,” the tactic he improvised to tire out and eventually beat the bigger, stronger George Foreman in 1974.

Not to compare the hearings with that fight in any way. Ali’s method was brilliant and exciting. No one expected it, and it represented the supreme gamble that his wits and reflexes would allow him to survive long enough against the pure power of his opponent to eventually reset the odds in his favor.

What’s going on in Washington now bears no resemblance to that. The hearings are so predictable, so empty of substance, so free of risk. They have turned into a ritual in which the appointing president’s opponents windmill away at the nominees, desperate to score points even with the most trivial forays. The new court hopefuls, for their part, cover up, trying to avoid saying anything to any questioner that might give their foes advantage. Their audience learns they never prejudge anything. You wonder how they might answer a question about their favorite Ben & Jerry’s flavor or how they’d ever manage to select one while they’re shopping.

I liked this exchange yesterday between Sotomayor and Arlen Specter, Pennylvania’s new Democratic senator. Specter wanted to know what the nominee thinks about the Supreme Court taking on more cases. Sotomayor didn’t want to say “until I’ve experienced the process.” (Here’s the transcript.)

You can imagine what happened when Specter turned to the topic of the Bush administration’s Terrorist Surveillance Program and the court’s declining to hear an appeal on the program’s constitutionality. Specter reminded Sotomayor that he had written to her a number of times advising her he would ask her about this during the hearings. “I’m not asking you how you would decide the case,” he said, “but wouldn’t you agree that the Supreme Court should have taken that kind of a major conflict on separation of powers?”

Sotomayor wasn’t going to fall for a trap like that–offering an opinion on whether the issues in a case merited the court’s attention. Here she goes:

Sotomayor: I can understand not only Congress’s or your personal frustration, and sometimes the citizens when there are important issues that they would like the court to consider. The question becomes what do I do if you give me the honor to serve on the Court. If I say something today, is that going to make a statement about how I’m going to prejudge someone else’s…

Specter: I’m not asking you to prejudge. I’d like to know your standards for taking the case. If you have that kind of a monumental historic conflict and the court is supposed to decide conflicts between the executive and legislative branches, how can it possibly be justified not to take that case?

Sotomayor: There are often, from what I understand — and that’s from my review of Supreme Court actions and cases of situations in which they have or have not taken cases, and I’ve read some of their reasoning as to this. I know that with some important issues, they want to make sure that there isn’t a procedural bar to the case of some type that would take away from whether they’re, in fact, doing what they would want to do, which is to …

Specter: Well, was there a procedural bar? You’ve had weeks to mull that over, because I gave you notice.

Sotomayor: Senator, I’m sorry. I did mull this over. My problem is that, without looking at a particular issue and considering the cert briefs file, the discussion of potential colleagues as to the reasons why a particular issue should or should not be considered, the question about…

Specter: Well, I can tell you’re not going to answer. Let me move on.

The rope-a-dope routine at least shows Sotomayor knows how to survive. But to go back to the ring for a moment, the performance doesn’t call to mind the imagination and courage Ali used to conquer Foreman, but his tactics in another fight. A few years after the Foreman fight, an unprepared Ali lost his title to Leon Spinks. It was Spinks’s finest hour, and it was short-lived. He fought Ali again before the year was out, and this time Ali came with a game plan: to hit Spinks when he could, which was often enough, and hang onto him the rest of the fight. It was a tired, embarrassing display. But it worked, and Ali regained his crown, if only for a moment.

Low Art, High Principle

I’m doing some reporting and research for a story on a website that ran afoul of a big copyright holder and federal copyright law. The crux of the tale is fair use: when is it legally defensible for an artist or commentator, say, to use the copyrighted work of another to create a new and distinct work. Specifically, the story I’m working on involves parody.

As it happens, the U.S. Supreme Court has spoken on this issue. To jog your (and my) memory, the case, Campbell v. Acuff-Rose Music, involved the rap group 2 Live Crew, which had borrowed elements of Roy Orbison’s “Pretty Woman” as part of a vulgar, mocking remake. The original song’s publisher sued, claiming copyright infringement. A federal district court bought the argument put forward by 2 Live Crew’s Luther R. Campbell (aka Luke Skyywalker), the remake’s author, that his work was a parody that deserved protection under the fair use exception to U.S. copyright law. An appeals court reversed the district court, and the case went to the Supremes.

Just for context, here’s a sample of the lyrics (quoting them here, as part of a commentary, is also an exercise of fair use, or so I’d argue if Campbell, aka Skyywalker, sued me; there’s a nice side-by-side comparison of the Orbison original and the Campbell parody here–unaccompanied by any copyright notices whatsoever):

Verse 1

[Pretty woman] Ha haaa, walkin’ down the street

[Pretty woman] Gir, girl, you look so sweet

[Pretty woman] You, you bring me down to the knees

[Pretty woman] You make me wanna beg please

[O-o-o-o-oh, pretty woman] …

Verse 4

[Two-timin’ woman] Girl, you know you ain’t right

[Two-timin’ woman] You was out with my boy last night

[Two-timin’ woman] That takes a load off my mind

[Two-timin’ woman] Now I know the baby ain’t mine

[O-o-o-o-oh, two-timin’ woman]

O-o-o-o-oh, pretty woman!

The court heard the case in November 1993 and delivered its opinion the following March. In a unanimous decision–that’s right: Antonin Scalia, Clarence Thomas, Ruth Ginsberg, David Souter, Anthony Kennedy, Wiilliam Rehnquist, Sandra Day O’Connor, John Paul Stevens, and Harry Blackmun, conservatives, liberals, middle-of-the-roaders all on the same side–the court found that 2 Live Crew’s work was protected under the fair use doctrine.

I was talking to my friend Pete about this yesterday, and I said that this is the kind of thing that makes me believe we live in a great country. This wasn’t a case of high art. In Souter’s opinion for the court, he drily notes that having found the Campbell’s song to qualify as a parody of the original, the justices will not take the further step of evaluating its quality.”

But it was a case of high principle, and as such, it was accorded the most serious consideration by the most august tribunal in the land.

“While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author’s choice of parody from the other types of comment and criticism that traditionally have had aclaim to fair use protection as transformative works.”

The rest of the opinion is an evaluation of 2 Live Crew’s work against the four factors that must be weighed in determining fair use: the purpose of the work, whether it is commercial or not-for-profit and whether it has “transformative” value in commenting on or criticizing the original; the nature of the original work and whether it deserves copyright protection; the “amount and substantiality” of any copying and whether it appropriates the heart of the original work; and the likelihood that the new work may kill the market for the original work or foreclose new ones.

It’s an absorbing exercise. Go and read it. It’s well worth the time. And I guarantee it’s the only Supreme Court decision in which you’ll find the words, “Big hairy woman/all that hair it ain’t legit/Cause you look like `Cousin It’.”

Keeping the Cronies Out

By way of A nice piece of historical analysis of the Miers nomination appears on the Wall Street Journal’s OpinionJournal. The author, Randy E. Barnett, a law professor at Boston University, argues that the founders envisioned the Senate’s advice and consent as an effective barrier to a president nominating his buddies to high office, including the court. Barnett quotes Alexander Hamilton on this proposition:

“To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”

Barnett then states the obvious question about the new nomination:

“Given her lack of experience, does anyone doubt that Ms. Miers’s only qualification to be a Supreme Court justice is her close connection to the president? Would the president have ever picked her if she had not been his lawyer, his close confidante, and his adviser?”

Alexander Hamilton looks like a real idealist, though, in imagining that the Senate might provide an effective check on a president who doesn’t care about the appearance of cronyism in appointments or of deadly incompetence on the part of those who have been installed in the executive branch (I’m thinking more of the architects of the Iraq war than those who botched the post-Katrina operation).

The Next Justice

Last night at dinner — celebrating Kate’s birthday with our friends John and Debbie — Bush’s impending Supreme Court nomination came up.

“How many emails have you gotten from the Democrats about Sandra Day O’Connor?” John asked.

Well, not hundreds. But a steady stream from MoveOn and other liberal groups. The messages complement the “progressive” protests that greeted the news that O’Connor was retiring and that Bush is finally getting his dreaded chance to pick a real right-winger for the court. MoveOn PAC, the explicitly partisan arm of the liberal interest group born here in Berkeley of software money, is calling on its supporters to hold house parties this weekend to talk up a campaign to convince Bush to do the right thing and pick a middle-of-the-road justice.

I don’t want to be dismissive of a noble effort. But I will be, anyway.

First: Just what are these action groups and protesters thinking? That they’re dealing with a bunch of people who can be reasoned with, whose consciences are open to appeals based on democracy’s finer points? If so, they’re even further out of touch than they look when they go in front of the cameras shrieking about Bush’s imminent destruction of the republic.

The people they’re dealing with are like, you know, the Emperor and Darth Vader from “Star Wars.” Your puny democratic principles. Just wait till the Death Star gets done with them. This crew thought next to nothing about committing us to a struggle in Iraq that they know casually intimate will last, gee, for another decade or more. So: appeals to reason and conscience? Not in this life, though one can hope they have a reckoning during their next turn on the wheel.

Second: The protests and house party ideas — the notion that this is a pragmatic approach, a way to jawbone the president and his ideologues toward the political center — are just kind of loony. Fact is, Bush will be exercising an executive prerogative, just the way almost every other president has done. There’s absolutely nothing in history or The Good Book of Common Decency that requires him to do what his political foes consider the right thing; or to care what they think, for that matter, unless they have the votes to make a difference.

It’s kind of disingenuous to pretend otherwise. Just how would it look to the Democrats/liberals if they had one of their own in the White House right now and the religious right was mounting a crusade to keep a Roe-friendly “out-of-the-mainstream” nominee off the court? They’d be heading to the barricades to defend the president’s prerogative, I imagine.

Someone named Ben Brandzel, under whose name today’s MoveOn PAC e-missive was sent out, points to O’Connor’s nomination and unanimous (99-0) confirmation in 1981 as “a great example of how this process is supposed to work.” Moderately. Reasonably. Everyone goes home happy. And you get a justice who respects abortion rights.

Except that’s not how it really happened in O’Connor’s case. She was one of four consecutive nominees who won confirmation with zero “nay” votes on the Senate floor: John Paul Stevens, O’Connor, and Anthony Kennedy all got unanimous approval, and so did Antonin Scalia, the arch-conservative.

The streak was broken with David Souter. He was confirmed 90-9, with the no votes coming from MoveOn-type senators (Kennedy, Kerry, Alan Cranston, Bill Bradley and others) who expressed concern Souter would vote to overturn Roe v. Wade. Instead, he’s turned out to be, along with O’Connor and Kennedy (seen as a Catholic conservative going in) what most would consider a MoveOn-friendly moderate. Citing O’Connor’s 99-0 vote as evidence of how the process of friendly moderation is supposed to work is simply misinterpreting the record.

What would seem more reasonable for the panic-mongers to do at this point … is to wait and see who gets nominated. Then, the shrieking can have a specific target and might actually prevent another Clarence Thomas from getting on the court.