The Senate Judiciary Committee confirmation hearings on Supreme Court nominee Judge Neil Gorsuch left no doubt that he is an excellent and qualified nominee and should be confirmed as the next associate justice of the United States Supreme Court.
Judge Gorsuch’s answers to the committee’s questions demonstrated a deep understanding of the law and respect for the Constitution and the role of judges. The same cannot be said for many of the senators who questioned him.
This fundamental lack of understanding and respect for the Constitution by some of the members of the Judiciary Committee was on full display as Sen. Sheldon Whitehouse(D-Rhode Island) relentlessly pressed Judge Gorsuch on the issues of political speech and campaign finance disclosure.
Of course, this line of questioning was expected. Progressive activists, outside groups, and politicians have vigorously campaigned to demonize and suppress political speech in the years following Citizens United.
Whitehouse cloaked his assault on free speech under the guise of disclosure using the political bogeyman of so-called “dark money.”
In one particularly telling exchange, Gorsuch correctly explained that disclosure laws threaten freedom of speech—a long-recognized principle in constitutional law. He cited the 1958 NAACP v. Alabama case, where the Ku Klux Klan supported attorney general of Alabama subpoenaed the NAACP for membership and supporter information. An action clearly intended to intimidate the NAACP and its supporters and stop its civil rights activity in Alabama.
The Supreme Court recognized that seeking membership and supporter information about organizations engaged in political advocacy was akin to asking members of a particular religion to wear identifying armbands and that such activity was offensive to the First Amendment.
Unwilling to accept that principle based on the Constitution and precedent, Whitehouse argued that chilling the First Amendment in favor of disclosure is a value he supports.
Clearly Whitehouse thinks his personal value of disclosure trumps the Constitution.
Judge Gorsuch did not base his answers on his personal values. Instead, he stuck to the Constitution and precedent. Exactly what a judge should do when performing his duties as a judge.
When judges do otherwise, the law means nothing.
Later in the exchange, Whitehouse asked Gorsuch why an advocacy group was now spending “dark money” to promote his confirmation to the court after doing the same to oppose President Obama’s nominee Merrick Garland.
Whitehouse was clearly upset that he could not get at the identity of those who funded the advocacy with which he disagreed. He called on Gorsuch to demand that the group in question identify its donors, but Gorsuch did not fall for this trap.
That is because, unlike the senator and some of his colleagues, Gorsuch understands the role of judges and respects the importance of the First Amendment as a safeguard of our democracy.
The right to speak about the political issues of the day and the right to do so anonymously is a fundamental element of the freedoms of speech and association, the very core of the First Amendment.
Our founders understood this too.
The Federalist Papers were written by a group of authors only known as “Publius.” It wasn’t until decades later that Alexander Hamilton, John Jay, and James Madison were revealed as authors.
These influential papers were aimed at public persuasion in support of ratifying the Constitution, and they served their purpose. The anonymous authorship of The Federalist Papers allowed the message to stand alone on intellectual grounds and be debated on its merits, rather than devolving into a sideshow of personal character attacks.
Would Whitehouse condemn “Publius” as a secretive dark money front group?
Rather than confront and debate an idea, Whitehouse is focused on identifying those who support it—why?
Given his anger over the issue, one wonders if retaliation is what the senator has in mind for those donors who fund speech he does not like—investigations, fines, jail, armbands?
Whitehouse wants to add to the already vast and complex regulatory regime currently restricting political speech under both federal and state law.
These regulations are burdensome to comply with at even the smallest financial levels, creating huge barriers to participation for average groups or individuals who simply want to speak on issues of public concern.
Of course, that is exactly the goal of politicians like Whitehouse and the radical progressive groups who argue for disclosure to combat the made-up threat of so-called dark money.
No one likes being criticized, and often those in power seek to quell dissent. And those who cannot compete in the arena of ideas can only win when they remove their competitors from the arena. If you can identify your enemies, you can intimidate and attack them personally rather than confront their ideas.
George III would have surely liked to know the identity of all those pesky patriots agitating for independence in 1776.
Our founders were keenly aware of the importance of the right to speak freely and enshrined it in the First Amendment. A robust and vigorous democratic republic is what they gave us. As Benjamin Franklin once observed, “those who would overthrow the liberty of a nation, must begin by subduing the freeness of speech.”
Our Constitution protects the liberty of our nation. If we are to retain that liberty, we must reject the values of Whitehouse and his ilk in favor of the Constitution.
It was clear from the confirmation hearings and his record, that Gorsuch will decide cases as the facts and the law dictate rather than basing decisions on his, or anyone else’s, personal values.
That is precisely the role of a judge and Gorsuch understands this. Unfortunately, Whitehouse and many of his colleagues don’t.
That is why the Senate should confirm Judge Gorsuch as next associate justice of the Supreme Court.
David Warrington is the chairman of America’s Foundation for Law and Liberty (@AFLawLiberty) and is a partner at the national law firm of LeClairRyan and leader of the firm’s political law practice.
This article originally appeared in The Hill.