A $10 million ad campaign urging confirmation of Neil Gorsuch to the Supreme Court, paid for by a secret source. Gorsuch refused to say whether the public has a right to know the source. He and the court, he said, must remain above politics.
Gorsuch was not involved in the court’s political decisions in Citizens United and Bush v. Gore. But surely he cannot deny that politics put him in the nominee’s chair instead of Merrick Garland.
Gorsuch, it seems, is less concerned than Whitehouse:
After a cute anecdote about Byron White, an associate justice appointed by President John F. Kennedy in 1962, Gorsuch got down to business. Admitting there’s “a lot about the confirmation process today that [he regrets],” Gorsuch finished:
“The fact of the matter is, it is what it is. It’s this body that makes the laws.”
That’s true: Congress has the power to try to outlaw dark money in politics. Except the reason that it’s an issue at all is is the Supreme Court’s 2010 Citizens United decision, which opened the system up to the unlimited flow of dark money like the $10 million supporting Gorsuch’s confirmation effort. (The decision allowed 501[c]4s, or so-called “social welfare” nonprofits, to engage in political activity—including political spending—more actively. By law, they do not need to disclose their donors to the IRS. It also created Super PACs, which can spend unlimited sums on advertising and voter outreach not “coordinated” with a campaign. 501[c]4s can donate to SuperPACs.)
Because the Supreme Court de facto instituted the policy through a ruling that went well beyond the McCain-Feingold Act at issue in the case, Congress would have to pass a constitutional amendment—which requires a two-thirds vote in Congress, and ratification by three-quarters of state legislatures—to overturn it. That is, to say the least, an unlikely scenario in the current political environment.
Gorsuch maintained this fantasy of the Supreme Court as an apolitical player throughout the proceedings, which Whitehouse earlier pressed him on with a question about Citizens United in particular. Did he really believe the judges were not involving themselves in politics through that decision?
Of course, that belies the fact that it was perhaps the most explicitly political decision in the history of the Court, in that by essentially putting a stop to recount efforts in Florida in a 5-4 decision, the justices were making George W. Bush president. (Legal scholars have also debatedwhether a line in the decision declares it cannot be used as precedent, further complicating Gorsuch’s dodge here.) The nominee, whose credentials and acumen are not in question, surely knows this.