Justice Anthony Kennedy

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By Billy Corriher, an attorney working in civil rights

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With the 2012 election in high gear, the country is tasting the bitter fruit of the Supreme Court's controversial Citizens United v. FEC opinion. Vitriolic political ads - funded by anonymous donors, accountable to no one – are flooding the airwaves in primary states. When these ads go nationwide, the chorus of criticism against Citizens United will only grow louder. We are already seeing local governments and state courts rebuking the Court. The Portland City Council, for example, passed a resolution opposing the idea that corporations are persons with constitutional rights.

In Citizens United, the Court ruled unconstitutional a federal law prohibiting corporations from airing political ads before an election. The Court found that the statute infringed corporations' right to free speech and that this infringement was not justified by a compelling government interest. The Court said, “[I]ndependent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Although such expenditures may give rise to “the appearance of influence or access,” this was not a problem for the Court because “an independent expenditure is political speech . . . that is not coordinated with a candidate.” 

As soon as it was announced, Citizens United came under fire. The idea that five unelected judges understand political corruption better than the United States Congress is absurd, and the notion that Super-PACs are “independent” of the candidates has proven to be a ludicrous legal fiction. 

Supreme Court Justice Anthony M. Kennedy has joined the list of legal leaders speaking out on the slow pace of judicial confirmations to the federal bench.

During the 2010 Ninth Circuit Judicial Conference, Kennedy questioned whether the Senate confirmation process is "working the way it should be," asking lawyers and law schools to study the process to identify "neutral" principles to guide both parties through the confirmation process, according to a release issued by the United States Courts for the Ninth Circuit.

"It's important for the public to understand that the excellence of the federal judiciary is at risk," Kennedy told the Los Angeles Times. "If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled."

Obama's judicial confirmation rate is "the lowest since analysts began detailed tracking [of] the subject 30 years ago," according to the LA Times, "with 47% of his 85 nominations winning Senate approval so far." There are currently 102 vacancies, out of 876 seats on the federal bench.

Christopher H. Schroeder, assistant attorney general for the Office of Legal Policy, said if the current rate of replacing judges continues, nearly half of all federal judgeships will be vacant by the end of the decade.