GOP warns president against Supreme Court litmus test on Citizens United

Senate Republicans on Tuesday warned President Barack Obama he’ll face serious opposition to his Supreme Court nomination if he uses a landmark campaign finance case as a litmus test for a nominee.

Senate Minority Whip Jon Kyl (R-Ariz.) invoked Supreme Court Chief Justice John Roberts’s name in a Senate floor speech Tuesday warning Obama not to nominate someone who would be an automatic vote against corporate interests. He made it clear such a nomination could provoke a GOP filibuster.

“The big corporation might have the right law and facts in a particular case,” said Kyl, who noted that Roberts in his own confirmation hearing said that in a dispute between a “big guy and little guy” he would vote for whoever had the law behind him. 

“You don’t go on to the bench [saying], ‘I’m always going to be against the big guy,’ ” said Kyl.

The tough words followed reports that Obama could be searching for a candidate willing to work to overturn the Supreme Court’s 5-4 decision in the Citizens United case, which allows corporations and unions to spend unlimited funds on individual campaigns.

Obama criticized the court’s decision in his State of the Union address, prompting a battle with the court’s conservatives, including Roberts.

Conservative Justice Samuel Alito, who attended the State of the Union, was seen mouthing the words “Not true” during Obama’s criticism; Roberts called Obama’s comments “very troubling.”

White House spokesman Robert Gibbs later fired back that the only troubling thing was the ruling, which he said would lift the floodgates on corporate spending on behalf of candidates in elections.

Obama referenced the case again when he made his first public comments about retiring Justice John Paul Stevens, stating he would be looking to nominate someone, like Stevens, who knows that “in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

Obama had offered similar comments about powerful interests in criticizing the Citizens United case.

Hours after Kyl’s speech, Obama sought to show a bipartisan approach to the confirmation battle, inviting members of both parties to a White House meeting next week to discuss the court vacancy.

Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking member Jeff Sessions (R-Ala.); Majority Leader Harry Reid (D-Nev.); and Minority Leader Mitch McConnell (R-Ky.) will attend,  Gibbs said.

The sensitivity to the Citizens United case was also reflected in the comments Tuesday of a key Senate Republican whose vote could be important to any Obama nominee.

Sen. Lindsey Graham (R-S.C.), whose support for Justice Sonia Sotomayor last summer served as a turning point in her confirmation process, warned Obama against trying to extract a promise from a potential nominee on the Citizens United case or any other particular issue.

“Everybody’s got their pet case,” he said. “But it’s really not appropriate to extract promises on specific issues.”

Graham, a close ally of Sen. John McCain (R-Ariz.) and an active advocate for him on the presidential campaign trail, then took a shot at Obama more directly.

“It’s odd to be lectured to about campaign finance reform from a guy who has raised a billion dollars” during his presidential campaign, he said.

Senate Democrats, however, showed they’re ready for a battle over the Citizens United decision in the context of the court fight.

After Kyl’s speech, Sen. Arlen Specter (D-Pa.) also highlighted the case, specifically mentioning the ruling as an example of conservatives’ intellectual dishonesty when criticizing judicial activism.

“Let’s be candid about the Supreme Court being an ideological battleground today,” Specter said. “That happens to be a fact. When some decry judicial activism, what could be more judicial activism than reversing the 100-year precedent that corporations may not engage in political advertising, as the Supreme Court did in Citizens United?”

He then criticized Roberts for swearing not to “jolt the system” during his Supreme Court confirmation hearing.

“Well, there have been quite a number of jolts in the system with his key vote,” Specter said.

Other senators suggested that the Citizens United case would come up during the confirmation process as part of a larger theme to address what Democrats view as conservative activism run amok on the Roberts court. The ruling will continue to make headlines throughout the early summer as Democrats in Congress, led by Sen. Charles Schumer (N.Y.) and Rep. Chris Van Hollen (Md.) attempt to pass legislation forcing corporations and unions to disclose in real time their involvement in any political advertising and speech.

“I certainly think [the Citizens United case] will be part of the discussion during the confirmation process about the conservative leanings of the court and some of the decisions they’ve rendered,” Sen. Amy Klobuchar (D-Minn.) said.

As the lead author of the military commissions legislation that has been subjected to years of Supreme Court scrutiny, Graham is particularly interested in prospective nominees’ views on national security and the laws of war. He had kind words for Solicitor General Elena Kagan, a leading candidate among roughly 10 centrist to liberal judges and lawyers Obama is considering.

“I like her,” he said, quickly adding, “and that might hurt her chances.”

Graham was pleased with Kagan’s answers about national security and the president’s broad authority to detain enemy combatants when she was going through her own Senate confirmation.

He said Obama is president and should have the right to choose Supreme Court justices as long as the person is well-qualified and not too extreme. He also noted that he didn’t think Obama would want to challenge Republicans to a pitched Supreme Court battle after spending so much political capital on passing healthcare reform.

“After healthcare, I don’t see why Democrats would want to be spending their summer defending a wide-eyed liberal,” he said.