$900K in TV ads target Tester’s vote for Trump’s Supreme Court pick

BILLINGS - It was a charm offensive at the tail end of a nearly $900,000 TV ad carpet bombing to get Montana’s Sen. Jon Tester to confirm Trump nominee Neil Gorsuch to the U.S. Supreme Court.

Thursday, five former Gorsuch law clerks from the 10th U.S. Circuit Court of Appeals, traveling by chartered jet, touched down in Montana to sing Gorsuch’s praises to anyone willing to listen. They were as happy as a duck hunting party, and Tester, a Democrat from a state President Trump won easily, was their mallard.

The trip was part of the Judicial Crisis Network’s campaign to get Gorsuch appointed. The Senate begins its hearings process on Gorsuch Monday. All five clerks, now in private law practice, were convincingly supportive of their former boss, a Westerner whose biggest selling point could be offering regional perspective to many issues in which justices from urban coastal states have little practical experience, like split estates, or American Indian treaty rights.

“(Gorsuch) is unquestionably qualified to be on the Supreme Court. He’s been a circuit judge on the 10th Circuit Court of Appeals, based in Denver, for nearly the last 11 years. The American Bar Association just came out and rated him as unanimously well qualified, which is the highest rating you can get for a candidate,” said Michael Davis, a former Gorsuch law clerk now in private practice in Denver. “He is unquestionably independent. He may have conservative personal views but it doesn’t influence his job deciding cases as a judge.”

It’s that last part, the stuff about not letting conservative personal views influence court decisions, that is tripping caution flags for Democrats, many of whom are frosted that the Senate’s Republican majority refused to grant a hearing to Merrick Garland, former President Barack Obama’s nominee for the Supreme Court.

Reflecting voters' voices

March 16 marked the one-year anniversary of Garland’s nomination. Republicans argued that with 11 months left on his second term, Obama was too close to the end of his tenure to be nominating judges. The GOP slow-walked the process into 2017, vowing in last year’s elections to take up the matter with a new president, regardless of who won.

“The American people have already begun voting on who the next president will be, and their voice should continue to be reflected in a process that will have lasting implications on our nation,” Montana’s Republican Sen. Steve Daines, said last spring.

In the process, Senate Republicans created a presidential campaign issue, upon which Trump vowed to appoint a justice who let the legality of abortion be decided on a state by state level. For 44 years, abortion has been recognized as a Constitutional right under the 14th Amendment, a right that states couldn’t deny.

Getting a U.S. Supreme Court justice seated takes 60 Senate votes. And with only 52 Republicans in the Senate, pro-Gorsuch groups have been throwing everything at Democrats like Tester in states President Trump won. In Montana, Trump clobbered Democrat Hillary Clinton in the presidential race, winning 101,531 more votes.

Tester has consistently said he would give Gorsuch a “fair hearing,” the kind Democrats still argue Merrick Garland deserved. The senator hasn’t said whether he would vote for Trump’s nominee.

“The Supreme Court is too important to play politics with, that’s why I am going to give Judge Gorsuch a fair shake. I’ve met with him, I’ve been reviewing his opinions, and I am eager to see his hearing,” Tester said in an email Thursday. “Vetting a Supreme Court nominee is too important to act as a rubber stamp for anyone - political party, special interest groups, or any president. This is important to the people of Montana.”

Tester hasn’t been a rubber stamp for Trump in the Senate. The senator has voted against nine Trump nominees for Cabinet positions and other high-ranking federal offices. Tester has voted for 11 nominees, including Interior Secretary Ryan Zinke, of Whitefish. However, those nominees needed just 51 votes for confirmation. Gorsuch will be the first nominee that needs more than a couple Democrats to succeed.

Montana voted strongly enough for Trump, that statistician Nate Silver of the FiveThirtyEight blog, predicts that Tester should be voting with Trump about 92 percent of the time. The senator’s votes are in line with the president 44.8 percent of the time, according to FiveThirtyEight.

Ads

It’s that red wave for Trump that has Planned Parenthood’s Martha Stahl thinking that it’s a practical move to carpet bomb Montana with political ads urging voters to call Tester. Stahl isn’t a Gorsuch supporter. She’s concerned the judge could set back women’s reproductive rights, based on his previous ruling that corporations, citing religious beliefs, could deny women birth control coverage in company insurance policies. In another case involving a Utah decision to defund Planned Parenthood, the judge sided with the state.

“Montanans care about the judiciary,” Stahl said. “If you can motivate constituents to call their senator on either side, that’s effective.”

Western Montana has been the biggest target for Judicial Crisis Network advertising. Early ads urged confirmation of Gorsuch with no mention of Tester. More recent ads name Tester, opening with attacks on his support for the Affordable Care Act and “threatening to obstruct Neil Gorsuch,” a threat Tester hasn’t made.

Television stations serving Missoula and Kalispell have been part of a $561,250 ad buy, according to reports filed with the Federal Communications Commission. Amounts have been smaller for other areas, though it’s impossible to get through a night of network television without seeing the ads in most Montana markets.

There’s also an automated call-in campaign drive in which Montanans willing to call Tester are connected to his office phone by a group called the Concerned Veterans of America.

There’s not much known about these groups. Recognized as “social welfare groups” under federal tax law, the groups run issue-based campaigns and so long as they don’t suggest the public vote for or against a candidate, they don’t have to reveal where their money comes from.

Judicial Crisis Network is the most active group in Montana currently when it comes to Gorsuch. Not much is known about it. However the group's president is attorney Carrie Severino, a former law clerk to Supreme Court Justice Clarence Thomas, one of the most conservative judges on the court. The group helped promote the confirmations of Supreme Court justices Samuel Alito and John Roberts, who were nominated by former President George W. Bush. The group's creation was reported by the Center for Responsive Politics, which traced its roots to 2004.

Television ad documents filed with the FCC by Billings station KTVQ also name Neil Corkery as part of the JCN team. Corkery’s wife, Ann, is instrumental in Wellspring, another group whose finances are undisclosed, but has given JCN at least $700,000, and contributed to several conservative groups.

Last year, JCN campaigned against granting Merrick Garland a hearing.

"It's concerning that outside dark money is already flooding into Montana, and Montanans should know who is funding these misleading ads,” said Nancy Keenan, Montana Democratic Party executive director. “Montanans want a senator who will take a thoughtful, measured approach to the Supreme Court nomination, something Jon Tester has been doing, and something Republicans refused to do just last year."

Dark money

Tester said Montanans should know who is paying for the ads attacking him. He’s introduced legislation that would require social welfare groups to reveal the people funding their organizations. The bill, titled the “Sunlight for Unaccountable Non-profits Act,” was introduced for JSN ads attacking Tester began appearing in Montana.

Tester said he doesn’t think advertising will persuade Montanans to support Gorsuch. They’ll find their own reasons to support or oppose the nomination.

“Montanans are independent people, we wouldn’t buy a pickup because the commercial’s got a catchy jingle, we buy one when we know it can get the job done,” Tester said. “Montanans expect the same thing from their senators. That’s why I am kicking the tires on Judge Gorsuch and waiting for his public hearing. I have to see if he’s up to the task.”

Gorsuch’s former clerks are hopeful their boss won’t be thwarted by politics.

“His job is to apply the facts to the law and let the chips fall where they may,” Davis said. “He’s not a political judge. He’s not a partisan judge. He doesn’t have a political or partisan agenda whatsoever. His only agenda is pushing the law and wherever the law takes him. That’s the message we’re trying to send.”