Little to Attack

With Little to Attack SCOTUS Nominee, Republicans Are Going Full Hypocrisy

Dark-money groups criticizing dark money, and a new appreciation for Justice Breyer.

STEPHANIE MENCIMER

While you wouldn’t know it from the attacks Republicans are lobbing at Judge Ketanji Brown Jackson, President Joe Biden’s nominee to the Supreme Court, her confirmation is a foregone conclusion. She’s been on the Democratic Supreme Court shortlist since the Obama administration. As a former US District Court judge for eight years and a member of the US Sentencing Commission, and newly appointed to the DC Circuit Court of Appeals, Jackson has been through three separate Senate confirmation proceedings since 2010. Three Republican senators voted to confirm her to the DC Circuit in June. In short, not only is she extremely qualified for the job, but she has already been thoroughly vetted. Even Senate Minority Leader Mitch McConnell has conceded that she has an impressive resume. 

As a result, conservatives have very little fodder with which to oppose her. GOP senators have indicated they will weaponize her record as a defense lawyer when she represented alleged terrorists detained indefinitely without trial at the Guantanamo Bay naval base. Sen. Josh Hawley (R-Mo.) has also made a feeble attempt to slime Jackson as soft on child porn by mischaracterizing her sentencing record as a trial court judge. GOP senators have been shamed somewhat already for their clearly racist comments and questions during Jackson’s DC Circuit nomination last summer—asking whether she’d ever participated in a riot, for instance, or if she’d ever been arrested for committing a hate crime. (Gracefully, she answered no to both.) As Sen. John Cornyn (R-Texas) discovered during that hearing when he asked Jackson how race would affect her work as a judge, a question never asked of a white nominee, attacking Jackson over race or suggesting that she is an “affirmative action” pick is not likely to go over well in the age of social media. That leaves Republicans and their conservative allies with, well, not much to work with.

Rather than simply celebrate the historic nomination of the nation’s first Black woman to the Supreme Court, Republicans have come up with another approach. This one is a deeply cynical and wildly hypocritical campaign to paint Jackson as a tool of “dark money” groups looking to pack the Supreme Court with radical leftists.

When it comes to Supreme Court nominations, Republicans have rarely been troubled by hypocrisy. That much was clear in 2016 when the Republican Senate refused to even hold a hearing for Merrick Garland, Obama’s nominee to replace Justice Antonin Scalia, on the grounds that his February death had occurred too close to a presidential election. That precedent was ditched four years later when they turned around and confirmed Trump nominee Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg a week before the 2020 presidential election. Fast forward to 2022 and the nomination of Judge Jackson and their professed dismay over how dark money contaminates the process of judicial nominations. 

When Biden announced Jackson’s nomination, McConnell did not miss a beat and issued a press release declaring she “was the favored choice of far-left dark-money groups that have spent years attacking the legitimacy and structure of the Court itself.”

The irony of this line of attack is that McConnell has been on a crusade to allow more dark money in politics for decades. His name captions the first Supreme Court case challenging the McCain-Feingold campaign-finance reform legislation, which attempted to rein in the flood of anonymous corporate donations in politics, and he openly supported the 2010 Citizens United decision that ultimately invalidated that landmark legislation. As Brian Fallon, the executive director of Demand Justice, one of the groups to which McConnell was apparently referring, told the Washington Post, the minority leader’s comments were “a tell that he has no hand to play against Judge Jackson on the merits.”

Fallon speaks from some experience. Over the past year, Republicans on the Senate Judiciary Committee have been laying the groundwork for a Supreme Court campaign focused on dark money by questioning all of Biden’s judicial nominees about any relationship or contact they may have had with Demand Justice. Last spring, Sen. Chuck Grassley (R-Iowa) and Sen. Mike Lee (R-Utah) asked Jackson extensive written questions about the organization and any contacts she may have had with its leadership as part of her confirmation to the DC Circuit, including whether she knew that Demand Justice had put her on its “shortlist” of desired Supreme Court nominees. 

Indeed, McConnell’s dark-money talking points are part of a larger coordinated messaging campaign against Jackson amplified by conservative media stars and organizations that, coincidentally, happen to be dark-money groups.

In January, after Breyer announced his retirement, Fox News host Laura Ingraham warned that Biden wanted to rush through a nominee to replace him because “that’s what the left’s dark money trolls want.” She claimed that whoever Biden nominated to replace Breyer would be the product of “a shady network of…dark money groups that are working to subvert—not just to change or add to our judiciary—but to change our entire system of government and frankly, our entire way of life.” The Fox News host failed to mention that she once worked for and still maintains close ties with the Independent Women’s Forum, a dark-money group in the Koch network that grew out of a committee created to defend Justice Clarence Thomas from sexual harassment accusations during his 1991 Supreme Court confirmation hearings.

The dark-money talking points for conservatives fighting Jackson’s confirmation also hail from the Judicial Crisis Network, a conservative nonprofit that does not disclose its donors. Its president, Carrie Severino, clerked for Supreme Court Justice Clarence Thomas. Founded during the second term of President George W. Bush, the group spent hundreds of thousands of dollars on ads and grassroots organizing to support the nominations of Chief Justice John Roberts and Associate Justice Samuel Alito.

By 2008, JCN was receiving money from the Koch network through the now-defunct Wellspring Committee, another dark-money organization controlled by well-connected conservative activist Ann Corkery. With a steady stream of anonymous donations, JCN has spent millions to influence state judicial and attorney general elections as well as federal judicial nominations. It has close ties to Leonard Leo, the vice president of the Federalist Society, another repository of dark money. Leo advised President Donald Trump on all of his judicial nominations and is central to an even larger web of secretive nonprofit groups involved in judicial confirmation fights.

In 2018, JCN pledged to spend at least $10 million backing the confirmation of Justice Brett Kavanaugh. In the run-up to that fight, the group received $17 million from a single, undisclosed donor. It also spent at least $10 million pushing the confirmation of Justice Barrett in 2020. None of this has stopped the group from complaining about left-wing dark money, even before Biden nominated anyone to fill the seat of retiring Justice Stephen Breyer.

JCN has never supported a Democratic judicial nominee, but the group discovered a new affinity for Breyer once he retired, seizing on him as a victim of the liberal dark-money groups they warn are backing Jackson’s confirmation. In early February, Severino wrote a National Review piece complaining that “far-left dark money groups” had “intimidated” Breyer into retiring so that Biden could replace the moderate justice with someone younger and more radical. She lauded Breyer, who, she wrote, “prides himself on not being partisan,” noting that even McConnell had praised the justice for coming out against a proposal kicked around by Democrats to expand the size of the Supreme Court.

Severino decried liberal groups like Demand Justice that had gone so far as to drive a billboard truck around the Supreme Court urging Breyer to retire while Democrats held the Senate. (In his written questions to Jackson last year, Grassley included a photo of the truck showing the message “Breyer Retire: It’s time for a Black woman Supreme Court justice,” and asked her if she agreed with the message. She declined to comment.) 

“To be clear, the Left has bullied Justice Breyer into retirement, and now it will demand a justice who rubber stamps their liberal political agenda,” she wrote. “And that is what the Democrats will provide because the time has come to pay back the dark-money supporters who helped elect them.”

Not long afterward, in early February, JCN announced that it would commit substantial sums of its own dark money to buy ads focused on the “record amount of dark money” spent from the Arabella Advisors network to elect Biden and other Senate Democrats. “Left-wing dark money groups in the Arabella Advisors network spent a jaw-dropping amount of money in 2020 to help elect Joe Biden and Senate Democrats,” Severino said in a press release announcing a $2.5 million ad buy. “These groups have done everything in their power to corrupt the judiciary and the judicial nominations process, from running smear campaigns against Justices Kavanaugh and Barrett to pushing radical court-packing reforms to even intimidating Justice Breyer into retirement. Now that they have a vacancy, they want payback for their dark money spending in the form of a Supreme Court justice who will be a rubber stamp for their unpopular and far-left political agendas.”

Arabella Advisors is a for-profit consulting firm that helps ultra-rich people funnel large donations, often anonymously, into political nonprofits. It is indeed part of a liberal dark-money network, one an Atlantic reporter recently dubbed “the left’s equivalent of the Koch brothers,” the oil and gas magnates who have long funded right-wing political groups. In the 2020 election cycle, the network spent $1.2 billion, according to the New York Times. Among the groups linked to it are nonprofits focused on the judiciary, such as Demand Justice, which recently announced its intent to spend $1 million on ads to support Jackson’s confirmation, and which has strong ties to the Biden administration. White House press secretary Jen Psaki was a senior adviser to the group and Paige Herwig, who is senior counsel to Biden and handles judicial nominations, once served as its deputy chief counsel.

Arabella has pushed back against much of the right-wing messaging about its network and accusations of being a dark money conduit, which started about three years ago with the Capital Research Center, another nonprofit funded by anonymous donors, and the Koch and other right-wing foundations. In a statement on its website, it says, “Judicial Crisis Network (JCN) has promoted false claims about Arabella Advisors and some of our clients. These build off a series of similar false claims that Capital Research Center (CRC) has promoted for the last three years. These claims turn on a variety of factual errors and deliberate mischaracterizations—including the implication that Arabella is responsible for the work of a completely independent nonprofit organization: Demand Justice. In fact, Arabella Advisors does not work for Demand Justice in any capacity. We also aren’t anything like the caricature JCN paints of us.”

What’s more important, JCN had been part of a dark-money network for years before Arabella Advisors arrived on the scene. Demand Justice didn’t exist at all until 2018. If anything, JCN provided Democrats with the blueprint for how to use anonymous donations in judicial confirmation fights. Nonetheless, Republicans on the Judiciary Committee are likely to parrot JCN’s talking points during Jackson’s confirmation hearing, all while pretending that they are shocked—shocked!—to discover dark money in the political system.

After all, what else have they got? As Sen. Amy Klobuchar (D-Minn.) likes to remind reporters, Jackson has more judicial experience than four other justices currently on the court did when they were nominated. Conservative legal commentator Ed Whelan predicted as much in a tweet back in January, “Unless Biden really messes up, Senate Republicans can’t expect to defeat his Supreme Court nominee. Goal should instead be to continue to win public debate over judicial philosophy and inflict political costs.”