One of the most remarkable moments during Supreme Court nominee Neil Gorsuch's confirmation hearings came when Senator Sheldon Whitehouse, Democrat of Rhode Island, questioned Gorsuch about the role of money in politics. Noting that “dark money” groups had spent around $7 million to defeat Merrick Garland, President Obama’s ill-fated nominee, and have now spent $10 million to support Gorsuch, Whitehouse asked what ideological bent had endeared him to this group of secret donors. After all, Gorsuch insisted that as a justice he would remain independent from outside pressure.
“I’m trying to figure out what they see in you that makes that $17 million delta worth their spending,” Whitehouse said. “Do you have any answer to that?”
“You’d have to ask them,” Gorsuch replied, tersely.
“I can’t, because I don’t know who they are,” Whitehouse shot back. “It’s just a front group.”
The moment underscored how wealthy, anonymous donors can sway an election. It also underscored the significance of this Supreme Court pick. With the Court’s current ideological deadlock at 4-4, the question that hovered over the exchange was whether this influx of dark money would influence Gorsuch, or would he, in fact, be capable of complete independence?
Zephyr Teachout, the progressive New York law professor who last year lost a close congressional race, knows about money in politics first-hand. A gubernatorial candidate prior to her congressional run, Teachout’s driving issue in both races was the corrupting influence of money in our political system. Robert Mercer, the reclusive hedge-fund manager who donated vast sums to help elect Trump, gave at least $500,000 to defeat Teachout (she says the total is closer to $700,000), helping make her race one of the most expensive of 2016.
I spoke with Teachout about Gorsuch’s record, the Democrats’ strategy in filibustering his nomination, and what his confirmation might mean for the future of progressivism.
Q: You’ve written that Gorsuch “sides with big business, big donors, and big bosses.” Why is he so bad for progressive causes?
Teachout: Gorsuch is an avowed Scalia admirer and the last thing we need now is another justice who will tear down key laws like the Voting Rights Act, and continue to dismantle anti-trust laws. It’s important to recognize how bad Scalia was for our country. Scalia was a leader in gutting money in politics protections, which lead to a much more oligarchic and kleptocratic country. But not only is Gorsuch at least as bad as Scalia, he could even be worse on money in politics.
Teachout: The Citizens United case dealt with how much outside entities could spend in elections. But up until now, even this extremely conservative Supreme Court has upheld contribution limits. In one of Gorsuch’s concurrences, he suggested that maybe we should apply ‘strict scrutiny’ to contribution limits because contributing to political campaigns is the heart of political freedom. That suggests that Gorsuch might not just be in favor of striking down the limits that corporations can spend independently, but also the limits individuals or corporations can donate directly to candidates. That would basically enable a system of legalized bribery.
Q: There are other disturbing cases. Like the one where he voted against a trucker whose truck broke down in the winter and, after several hours, the trucker left to warm up when he felt like he might die of the cold, and then he got fired for it.
Teachout: A lot of people have rightly asked about Gorsuch’s cold-heartedness. While he says ‘well, I’m just following the law,’ in a lot of these cases, it’s cold-hearted in a way that actually defies the law. And he sort of made light of the life threatening situation the trucker was in. He said something like ‘Well, he could have waited around.’ I think the stakes are incredibly high here. This guy’s going to be around when your kids’ kids are born.
While he says ‘well, I’m just following the law,’ in a lot of these cases, it’s cold-hearted in a way that actually defies the law.
Q: Chuck Schumer said the Democrats plan to filibuster the Gorsuch nomination. Is that a good strategy?
Teachout: I think it’s a moral strategy. You’ve got to consider this confirmation as important as a presidential decision. We’ve seen how much our Supreme Court governs us. Despite massive popular support for limitations on corporate spending, the Supreme Court says we must live in a world where there is unlimited corporate spending. The rules of politics that we live under are defined by these nine men and women on the Court. And they can overrule the popular will.
Q: I understand the moral argument, but strategically, isn’t there a good chance a Gorsuch replacement could be even worse for progressive causes?
Teachout: One thing I took from the last election is that we should do what is right instead of trying to imagine we can see the future. Some believe the President gets his pick and that’s the spoils of war. But this is a fundamental moral decision. If you think this person is not going to govern well, you should vote no. We don’t know the future in terms of whether there will be a nuclear option. But there’s an insane thought among some Democrats that if we are really nice to Republicans now they will be nice to us later. There is no evidence in recent history to suggest that’s true. I’m very happy to see Chuck Schumer leading the filibuster charge.
Q: The fact that Republicans wouldn’t even give a hearing to Garland perhaps provides more justification for a filibuster.
Teachout: I don’t think you need to go there to vote no on Gorsuch, or to filibuster Gorsuch. We’re talking about a threat to our democracy. We’re not talking about disagreements on a few minor cases.
Q: If Gorsuch is confirmed, how does that play into the Democrats’ strategy moving forward? Does it rule out using the Supreme Court as part of that long-term strategy or is there a chance he might not be so bad on some issues?
Teachout: What history has shown is that the members of the Supreme Court can change. Everything is possible with Gorsuch. But the distance between the views of the public and the court is important. So I think it’s going to be incredibly important to to bring facts to bear about how deeply corrupting some cases were, such as Citizens United.
Q: Gorsuch ruled against an autistic boy whose parents thought he was not getting a proper education. Could this mean that he’s hostile to laws that protect disabled children, and they may lose federal protections if he’s confirmed?
Teachout: You have to wonder that. There’s a fantasy that some judges come to the Supreme Court without ideology and without a set of beliefs. But the Supreme Court is not like the circuit courts. In the circuit courts, most of the time you are bound by precedent. But when you are on the Supreme Court your deeply held values and beliefs do matter. When we talk about the Supreme Court, in choosing the people who are going to govern us we should choose people who share our values.
Q: Final question. Why did Mercer spend so much money to defeat you?
Teachout: Well, I like to think it’s because I was a special threat. One of the disturbing things about dark money is that we’ll never know. And Mercer declined my invitation for a debate. When Gorsuch told Whitehouse during the hearing that he needed to ask the dark money group why they spent all the money, Whitehouse said he couldn’t ask them because “We don’t know who they are.” Well, I did ask. But [Mercer] doesn’t have to answer, which is also a problem.