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By Bert Brandenburg, Executive Director of Justice at Stake, a nonpartisan, nonprofit campaign with more than 50 partners, working to keep America's courts fair, impartial and free from special-interest and partisan attacks.

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For those concerned about special-interest spending in elections, today's Citizens United ruling was an unmistakable setback. This ruling pours gasoline on an already raging bonfire that will affect all federal and state elections. And it will pose an especially grave threat to the integrity of elected state courts.

But today's Citizens United ruling does have a silver lining: it explicitly says that corporations that pay to play in elections can be forced to disclose their financial sources. Companies running so-called independent campaigns can literally spend infinite amounts. But they do not have a constitutional right to do so anonymously.

The ruling thus gives clear guidance to state and federal lawmakers that they can pass disclosure laws, to provide desperately needed sunlight in a new era of runaway election spending. Moreover, it is a hopeful sign that First Amendment attacks, which have been used as a battering ram against legitimate election laws, may have reached their upper limit with the Citizens United case.

In today's ruling, the U.S. Supreme Court said businesses can spend directly from their treasuries on federal elections-a ruling that could unleash a tsunami of campaign cash. And that's clearly just the beginning. As quickly as they can be cranked out, new lawsuits will demand equal rights for unions-and for spending on state and local elections, not just federal campaigns.

It's easy to imagine where this will lead, especially for those who focus on the specialized area of judicial elections.

Just last year, the Supreme Court faced all the potential worst-case scenarios when it issued a landmark ruling in Caperton v. Massey. In that case, a coal executive spent $3 million to elect a new justice to West Virginia's high court, as his company sought to overturn a $50 million jury award.

The U.S. Supreme Court forced the judge off the case, but it got a powerful sneak preview of what Citizens United could spawn. Remarkably, the money spent in the West Virginia election all came out of the executive's private finances. Now it's likely that he and other CEOs, as well as union chiefs, will ultimately turn business treasuries into personal election-campaign piggy banks.

Justice John Paul Stevens clearly had the Caperton case in mind when he wrote the following in his eloquent dissent:

The consequences of today's holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e.g., O'Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for Justice at Stake et al. as Amici Curiae 2, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps "Caperton motions" will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems.

Given the historic purpose of campaign finance laws -- to prevent large concentrations of money from corrupting officials and undermining public trust in government -- that's hardly an inspiring prospect. And it might have been avoided had the court decided only the original question, of whether federal election law should apply to a video-on-demand documentary that criticized a presidential candidate.

So where are the silver linings in Citizens United v. Federal Election Commission? Where are election reformers now that the ruling has been handed down?

The disclosure ruling is significant, and it potentially affects all elections, federal and state. While it struck down Austin v. Michigan Chamber of Commerce's 1990 ban on corporate spending, the Supreme Court reaffirmed multiple Supreme Court rulings that campaign disclosure laws are consistent with the First Amendment. The Roberts Court, which is skeptical of campaign regulation, upheld rulings dating back to Buckley v. Valeo in 1976, which found that disclosure of election spending provides vital public information and helps combat corruption. Significantly, this ruling covers expenditures by independent campaigns whose goal is to influence election outcomes.

Lawmakers can and should now move without any fear of meaningful litigation to start a new era of sunlight on special-interest spending in all elections. And these laws should specifically bring a public accounting to the many groups that have used "independent" ad campaigns to skirt reporting rules.

One also can hope that this vote will leak some air out of a First Amendment overreach that has besieged courts in recent years. Despite statements to the contrary, federal courts have upheld most campaign finance laws against First Amendment challenges, choosing only to carve out specific exceptions, such as the "millionaire's amendment" in Davis v. FEC.

With the Supreme Court now rejecting the simplistic argument that all forms of campaign regulation violate free-speech, perhaps courts everywhere will pause and look more skeptically at the continuing assault on public financing and other laws.

This is especially true in the area of court elections. A second silver lining recent years is that the Supreme Court and lower tribunals recognize that courts have special constitutional obligations, which must be weighed against free-speech claims. In Caperton, for instance, the court said there is no First Amendment right to the judge of one's choice. A citizen can support any candidate for the bench. But if he goes to court, the Fourteenth Amendment may, for due process and fairness, require that another judge hear the case. Justice Kennedy, in the majority opinion, reaffirmed that in Citizens United.

Similarly, the conservative Fourth Circuit of Appeals unanimously upheld North Carolina's public financing law for appellate court races. In its 2008 ruling in Duke v. Leake, which the Supreme Court declined to hear, the Fourth Circuit wrote: "The concern for promoting and protecting the impartiality and independence of the judiciary ... dates back at least to our nation's founding," adding that the provisions "to protect this vital interest in an independent judiciary are within the limits placed on the state by the First Amendment."

Even if courts continue to chip away at specific campaign regulations, an argument can still be made that rulings such as Caperton and Duke v. Leake should provide a special protective shield around elections involving the courts.

No matter what, those who care about keeping courts impartial need to turn bad news into good news, by moving to enact real reforms-including disclosure, recusal, public financing and appointive systems - to make sure justice is not for sale.

[Image via HatCityBLOG.]

Today, the Senate voted for cloture 70-29 on the nomination of Judge David Hamilton to the U.S. Court of Appeals to the Seventh Circuit. Senator Jeff Sessions (pictured at right -- click to zoom) attempted unsuccessfully to lead a filibuster Hamilton, a federal district judge. 

Earlier today, The Washington Post published an editorial entitled "Giving Hypocrisy a Bad Name," saying, "We hope that Republicans in large numbers heed Mr. Lugar's words of praise for Judge Hamilton's record, intellect and character and allow a vote -- and then vote in favor of confirmation."

"In this instance, a vote for Judge Hamilton will be a vote to restore much needed comity and integrity to the process -- qualities that the next Republican president will greatly appreciate when his nominees are considered," observes The Post.

At Huffington Post, Sam Stein turns up a document from November, 2003, when President Bush was selecting the newest members of the federal judiciary, that offers further evidence of conservatives' change in approach. Stein highlights a white paper arguing that judicial filibusters are unconsitutional. The paper is produced by the Federalist Society, who Stein describes as "the crown jewel of the conservative legal movement."

The 16-page document, which is still available on the Federalist Society's website, concludes:

For more than two centuries, an unwritten Senate rule against the filibustering of judicial nominees has reinforced the constitutional design of the judicial confirmation process. The recent break with this longstanding tradition has set a worrisome precedent that raises serious constitutional questions. By intruding upon the power constitutionally vested in the President to nominate and appoint federal judges, and upon the power of the Senate majority to consent to the President's nominees, judicial filibusters pose a unique threat both to the separation of powers and to the independence of the federal judiciary.

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By Bert Brandenburg, Executive Director, Justice at Stake

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This spring, in Caperton v. Massey, the Supreme Court said that due process required a West Virginia Supreme Court justice to step aside from a case involving a supporter who'd spent $3 million to help elect him. But the 5-4 majority left minimal guidance to the states, inviting them to fill in the blanks through state court rules.

First answers are coming from the Midwest, where divided courts have recently taken Caperton in different directions. Wisconsin's high court rejected proposals to require recusal when campaign spending reached a fixed "trigger" level. The proposal was sparked by record-breaking cash washing through the state's last three Supreme Court contests.

But the court's 4-3 majority took a far more radical step, approving requests from two of the state's most powerful players-the Wisconsin Realtors Association and Wisconsin Manufacturers & Commerce-that no contribution or independent expenditure, no matter how large, could ever be the sole basis for recusal. In other words, if Bernie Madoff had spent $100 million to elect a Wisconsin Supreme Court justice, a victim suing him for redress couldn't point to the support and ask the justice to abstain.

In Michigan, the state Supreme Court moved forward instead of backward. A 4-3 majority began by agreeing that a judge should be disqualified when "the judge's impartiality might objectively and reasonably be questioned" -- catching Michigan up with the vast majority of other states that have adopted this standard.

The Wolverine State's Supreme Court went further, adopting a first-in-the-nation provision that a litigant who fails to convince a justice to recuse may appeal to the entire high court (which would have to spell out its reasoning when it decided). "Times are changing and we're becoming increasingly aware of the impact a refusal to disqualify has on the public," said Chief Justice Marilyn Kelly.

Indeed, as spending on high court elections has more than doubled over the last decade, recusal has become a hot issue. Three in four Americans believe that campaign cash influences courtroom decisions. Caperton reaffirmed that this cash matters, and that every state must guarantee litigants a fair trial with due process, including in cases that involve major campaign spenders. And states are very much allowed to set rules that are tougher than the minimum required by constitutional due process requirements.

Since courts typically draft their own recusal standards, watchful eyes are on states like Nevada and Washington, which are now reviewing their rules. But judges don't always get the last word. In Wisconsin, just a week after the high court's retreat, legislators passed a system for public financing of judicial elections -- a reminder that impartial justice is everyone's business.

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By Maha Jweied, Senior Attorney-Advisor, Office of the General Counsel, U.S. Commission on Civil Rights; former law clerk, Appeals Chamber, International Criminal Tribunal for the former Yugoslavia; 2009-2011, Young Lawyers Division Liaison, ABA Section of International Law; 2009 ACS Public Interest Fellow. The views expressed below are those of the author alone.

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Recently I blogged on the interrelationship between international law and the U.S. civil rights movement. While certainly not a contentious topic for most readers of ACSblog, the use of international law in domestic courts to further a domestic civil rights agenda-or any other matter-is anything but resolved. In some instances, international law is necessary to decide a matter, such as in cases brought under the Alien Tort Claims Act. In other instances, international and foreign law sources are referenced by litigants or judges as examples of non-binding authority in support of a particular position. It is primarily this second use of international law which Professor Chimène Keitner focuses on in her article "International and Foreign Law Sources: Siren Song for U.S. Judges?" published in the most recent issue of Advance: The Journal of the ACS Issue Groups.

Professor Keitner provides a clear overview of the judicial debate surrounding the use of international and foreign law sources as non-binding authority in domestic courts and the reaction of legislators to this reality. She then examines three sets of arguments advanced by opponents to the use of these sources, which she terms as Institutionalist Objections, Instrumentalist Objections and Inherentist Objections. It is these arguments and the third set in particular, which I would like to explore here.

Institutionalist Objections essentially assert that U.S. judges are ill-suited to draw on foreign sources or international law because they are not well-versed in either. These objections are perhaps the weakest of the three sets of arguments because judges are not presumed to be experts in every area of the law that may come before them. Instead, judges are required to perform their duties competently and diligently-no matter what the subject matter is or where their expertise lies.

The second set of objections, Instrumentalist Objections, discourages the use of international and foreign law sources for fear that judges will cherry pick those sources that best suit their view. But as Professor Keitner rightly points out, judges typically only choose to cite non-binding authority which supports their position. Again, as with the Institutionalist Objections, these objections exist regardless of the type of non-binding authority that is being considered.

At the heart of the third set of arguments-Inherentist Objections-is the theory of American exceptionalism. These objections assert that because our Constitution is a unique document, so are our values. Thus, non-domestic sources are irrelevant unless explicitly endorsed by Congress. These arguments are the most difficult to combat as they rest on ideology.

Inherentist Objections tend to invoke the language of national sovereignty and a rigid perspective on the nation's position within the international world order. But those who support these objections, also support the role of the United States in affecting change in other countries-many times through accessing international organizations such as the United Nations or the North Atlantic Treaty Organization. These opponents therefore generally only seek out the international community when they like. This inconsistency exposes the United States to criticism from the international community it often endeavors to lead.

Our society's process of betterment should not be confined to our borders. With the world as interconnected as it is, doing so would lend support to the view that the United States is isolationist. Rather, our nation's international standing is strengthened when we demonstrate that we are a full participant in the world order we seek to improve (and in many instances guide) by engaging other nations' views-including through their jurisprudence. To act otherwise would be a form of hubris. As Professor Keitner states in the closing of her article, "Participating in international judicial dialogue should be viewed as a means of strengthening, not weakening, our commitment to the democratic values embodied in the U.S. Constitution."

One of the joys of working on The Great Decision, our new book on the Marbury v. Madison decision, was immersion in the engaging personality of John Marshall. Marshall was convivial and exuberant. He loved a good drink, and he loved a good time. Most notably, Marshall's affable nature played an enormous role as he lifted the Supreme Court to an important role in our constitutional system.

Accordingly, we have to register a note of respectful disagreement with Professor Noah Feldman's recent New York Times op-ed piece. The thrust of Feldman's argument is that greatness in a Supreme Court Justice is unrelated to his (or her) temperament and personality. John Marshall, perhaps the greatest of all our Justices, stands as a stark (and entertaining) refutation of that thesis.

Marshall's friendly disposition and reassuring personality were widely noted. In a popular essay published in 1803 (the year that Marbury v. Madison was decided), William Wirt reported that Marshall always seemed to "have an expression of great good humor and hilarity," with "an irradiating spirit" in his eyes. "His laugh was too hearty for an intriguer," recalled Justice Joseph Story. Marshall was an enthusiastic member of the Quoits Club, a barbecue club in Richmond that featured rowdy rounds of quoits (a popular game of the era), meat and liquor. Marshall cheerfully enforced the club's rule that anybody who talked about politics or business was fined a case of champagne.

Perhaps the only person who disliked Marshall was Thomas Jefferson. Marshall and Jefferson were cousins - and they hated each other. The reasons for their mutual contempt were many and varied - ancient family grievances, perceived personal slights, political differences. But even Jefferson's contempt for Marshall was laced with recognition of Marshall's pleasing personality. Jefferson derided Marshall's "lax and lounging manners" in a letter to a contemporary. Jefferson seemed to think that others were duped by Marshall's evident good humor.

Marshall used his personality to full effect as, plank by plank, he constructed the Supreme Court. In one of his many efforts to make the court a cohesive body, he convinced the Justices to stay together in the same inn when they were in Washington for Supreme Court sittings. They ate and drank together every night. In fact, Marshall presided over a nightly ritual with his colleagues. Marshall announced a rule that the Justices could have their Madeira only if it was raining. Every night, Marshall would have a Justice go to the window and report on the weather. If the Justice at the window reported that the weather was clear, Marshall would proclaim that the court's jurisdiction was so vast, it must be raining some place - and so the Madeira could be uncorked.

Bolstered by his winning personality and friendly relationships, Marshall set out to mold the court. He persuaded the Justices to wear black robes - a uniform symbol of simple fidelity to the law - rather than the range of garments that the Justices had favored in the past. He led the Justices to abandon their practice of issuing individual, seriatim opinion. Instead, they would join opinions of the court. Marshall frequently forged unanimity (usually in opinions that he authored). As a result of these actions, fueled at least in part by his bon homie, opinions like Marbury v. Madison emerged as authoritative decisions of the court, rather than as a chaotic and undifferentiated babel of individual perspectives.

We may like to think that personality plays no role in the greatness of a Supreme Court Justice. The life and record of John Marshall point to an opposite conclusion. Let's lift a glass of Madeira to that example.

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By Christopher L. Eisgruber, Provost & Laurance S. Rockefeller Professor of Public Affairs, Princeton University and author of The Next Justice: Repairing the Supreme Court Appointments Process

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By now everyone knows that President Obama intends to appoint a Supreme Court justice with "empathy." In a recent press conference, Obama said that a great jurist must be capable "of understanding and identifying with people's hopes and struggles."

Nothing new here: empathy has been a persistent theme in Obama's remarks about the Court. On the campaign trail, he said that "we need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom." In 2005, when he was a United States Senator voting against the nomination of John Roberts to be Chief Justice, Obama praised Roberts for decency, humility, and adherence to precedent, but faulted him for a lack of empathy.

Predictably, conservative senators and pundits have complained that Obama is planning to choose a jurist who will follow her (or his, but probably her) feelings instead of the law. Obama has a ready answer. When he voted against Roberts, he explained that in the most important 5% of constitutional cases, text and precedent leave the outcome unresolved. No justice can interpret the Constitution without appealing to something else-such as empathy.

Obama has the better of this argument-right up until the last point. Obama is right that hard cases require contestable judgments that go beyond text or precedent. He is right that we should want Supreme Court justices who recognize the need to protect disadvantaged minorities and vulnerable individuals. He is right, too, that a good justice has to understand the hopes and struggles of the litigants on either side of the case. Ultimately, though, empathy is not enough to decide cases or choose justices.

In many hard cases, empathy cuts both ways. One can empathize both with a husband who wishes to save the life of the unborn child he fathered and also with a wife who wishes to end an unwanted pregnancy. Empathy does not determine whether the woman has a constitutional right to an abortion without spousal consent.

Sometimes empathy is a false guide. For example, I empathize with the Jewish families of Skokie, not with the KKK bigots who wanted to march in their streets, but it does not follow that the demonstrators had no free speech rights. I empathize with homeowners whose land is seized for an ill-conceived public works project, but it does not follow that the Fifth Amendment prohibits such takings.

Here is the problem: empathy tells us when someone is hurt and deserves our sympathy. It cannot tell us whether courts should redress that hurt. Sometimes, constitutional text or legal precedent may settle that question. In tough constitutional cases, though, you need a judicial philosophy, a thoughtful view about when judges should override the judgments of a democratically elected legislature.

From a liberal perspective, John Roberts has a problem, but lack of empathy is not it. For all we know, Roberts may be a very empathetic guy. I met him once, and he seemed as empathetic as some of the people on Obama's short list-or, for that matter, as David Souter, whom I regard as a good justice but not an especially empathetic one. Yet, empathetic or not, Roberts believes that the Court has no special responsibility to protect the rights of historically disadvantaged groups. He uses that controversial, revisionist view of the Court's role to construe the Constitution's ambiguous provisions. Obama believes-rightly, I think-that we should want a Supreme Court justice with a very different judicial philosophy.

"So what?" you ask. If Obama understands what kind of justice we should have, what difference does it make if he talks about "empathy" instead of judicial philosophy? Obama is not doing anything worse than George W. Bush did when he used "judicial restraint" as a code word for justices who have shown very little restraint when striking down laws about gun control, voluntary school desegregation and campaign finance reform, among other things.

No worse, indeed, but no better, either. "Empathy" is just the latest in a string of concepts designed to suggest that we can talk intelligibly about Supreme Court appointments in politically neutral terms. "Judicial restraint," "minimalism," "character," "precedent," "respecting the text": like empathy, they matter, but like empathy, they are ultimately Hamlet without the Prince. In the most important cases, justices differ because they have different views about the purpose of judicial review: for example, is the Court's most basic job to protect federalism or to protect minority rights?

Until we admit what kind of questions really matter to assessing the career of a Supreme Court justice, our public debates about Supreme Court nominations will continue to be a kind of charade. It is numbing to imagine confirmation hearings focused on whether some distinguished lawyer is sufficiently empathetic. President Obama is himself a first-rate constitutional lawyer, and I suspect he knows this. It would be a gift to the country if, at some point in his presidency, he were to say so.

Attorney Keenan Kmiec, a former clerk to Chief Justice John Roberts, recently wrote a column decrying the "[c]omplaints about judicial activism [that] have plagued Supreme Court confirmation hearings for decades." As were co-authors Goodwin Liu and Pamela Karlan at this month's release of Keeping Faith with the Constitution, Kmiec is most concerned with understanding judicial philosophy of President Obama's judicial nominees. However, according to Kmiec, "Empty or ambiguous charges of 'judicial activism' only make things harder."

Understanding a nominee's judicial philosophy is hard work, but it should be the goal of the confirmation process. Amorphous charges of 'judicial activism' score cheap political points, but they have no place in a serious confirmation debate. Let's banish the term or at least use it carefully.