Gorsuch: The Founders and the Constitution prescribed a process for making law, and they made it hard.
Founders proscribed a process for making law. They made it hard. That was part of the separation of powers.
They didn't want lawmaking to be easy, said Gorsuch.
Gorsuch: There are some due process considerations, fair notice considerations that I take seriously. We charge people with notice of the law.
Gorsuch: These aren't idle considerations, because more often than not we are talking about whether someone goes to prison. For a long time.
Cornyn: Members of Congress don't vote on, e.g., documents admitted here, or floor statements.
Cornyn: Just a few other cats and dogs to go over with you.
Still discussing the role (or lack thereof) of legislative history.
Cornyn: Some members of this body have suggested you are hiding your judicial philosophy. But they must not have been paying attention . . . .
Senator Cornyn is done, so we are going to hear from Senator Whitehouse and then take a 30 minute lunch break.
Sen. Whitehouse is discussing dark money again, which was the focus of his questioning yesterday
Senator Whitehouse: Yesterday, you would not say that anonymous billionaire money is a bad thing, you would not ask the money behind your nomination to reveal itself.
Senator Whitehouse: Amirite?
Gorsuch: I believe what I said yesterday is that Congress makes the laws and it can require those disclosures if it wants.
Gorsuch: Do you see disclosure as an affirmative value?
Sorry, Whitehouse asked that question.
Gorsuch: We follow precedent.
Whitehouse: Which is grounded in precedent.
Gorsuch: One of the precedents of the US Supreme Court, in Buckley v. Valeo, had to do with disclosure. The court expressly represented that Congress and the states have the power to pass laws requiring disclosure. Up to a point. But disclosure can be used with a club, as the Court recognized.
Whitehouse: Let's talk about NAACP case. When you raise that in a conversation about dark money, suggests that you equate billionaires donating money in secret and families in the Jim Crow South whose homes and churches were being bombed. Presumably that is not what you meant.
Gorsuch: I never said anything such thing. I wouldn't and I haven't.
Gorsuch: I haven't said anything else.
Whitehouse: I think there's a very significant difference in the facts.
Gorsuch: Of course there is.
Whitehouse is reading Jefferson on dangers of corporations, followed by Teddy Roosevelt on corporate control of government. Should the Court keep these warnings in mind?
Gorsuch: Corporate speech doesn't receive the same protection as individual speech.
Whitehouse is talking about Citizens United at some length.
Durbin: The court in Citizens United did say that there is no limit on corporate spending in politics that could lead to corruption or the appearance of corruption. To me that is fanciful in the extreme.
Durbin: They made some presumptions. One was that all this corporate political spending was going to be independent of candidates. Presumption 2 was that it would all be transparent. Presumption 3 was that the back and forth would not affect confidence in government. I think that reality completely belies all 3 of those points.
Whitehouse, not Durbin, sorry.
Whitehouse: More than a third think the court will be much more favorable to a corporation than to a person. If you thought any of those presumptions were wrong, would you be willing to reconsider that case?
Gorsuch: I have a couple of reactions.
Gorsuch: I will promise you what I promise every litigant when I hear someone asking me to overturn a precedent.
Gorsuch: Arguments for overturning precedent include changed circumstances.
Gorsuch: I will follow the law of judicial precedent in this area. I make no promises.
Gorsuch: I am distressed to hear you think that judges is an organ of a party.
Whitehouse: It distresses me too. Quite a lot.
Gorsuch: I don't see Republican judges and I don't see Democrat judges.
Whitehouse: On the Tenth Circuit, I don't believe you ever have party-line decisions. But it's a very different world where you are, compared with the Supreme Court.
Whitehouse: You say that Congress can demand disclosure. Once you let certain political interests achieve the kind of dominance that Citizens United allows, they start to have disproportionate influence over Congress, and that won't happen.
And with that, they are on a half-hour lunch break.
Gorsuch's closely line before the break-- "Nobody will capture me"
And they are back. Senator Mike Lee of Utah is up next.
Were back, although the room is still a bit empty