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GOP Dark Money Criticisms in Supreme Court Fight Mirror Democrats

March 18, 2022, 8:45 AM

Sen. Sheldon Whitehouse (D-R.I.) brought poster boards to Justice Amy Coney Barrett’s 2020 confirmation hearing highlighting the interconnections among conservative groups like the Judicial Crisis Network and the Federalist Society.

Now, Republicans have a chance to turn the tables, criticizing the role played by Demand Justice, which also doesn’t disclose its donors, in championing Ketanji Brown Jackson’s Supreme Court nomination.

Focusing on the influence of “dark money” groups that don’t need to disclose their donors may prove appealing for Republicans sensitive about how they oppose the first Black woman Supreme Court nominee, said University of Massachusetts Amherst political science professor Paul Collins.

“Instead of attacking Judge Jackson directly, they can attack the process, which includes spending by outside organizations whose donors can’t be traced,” said Collins, who studies Supreme Court confirmation hearings.

Dark Money Boom

The Supreme Court’s 2010 landmark decision in Citizens United v. FEC opened the door to unlimited spending by corporations and non-profit organizations that don’t disclose donors.

In the years following that ruling, dark money has become a larger share of spending in U.S. politics and, by extension, Supreme Court confirmations.

Anna Massoglia, who tracks money in politics for the nonprofit group Open Secrets said dark money spending occurred during confirmations under Barack Obama and George W. Bush, but “has really boomed in the most recent Supreme Court nomination processes.”

Judicial Crisis Network was the first dark money group to focus specifically on judicial nominations and has continued to be the biggest spender in the Supreme Court confirmation process, Massoglia said. Demand Justice began as a progressive counterweight during Donald Trump’s presidency and campaigned against the confirmations of Justices Brett Kavanaugh and Amy Coney Barrett.

During the Trump years when Republicans stocked the Supreme Court and lower courts, minority Senate Democrats led by Whitehouse lashed conservative advocacy groups over their influence and lack of funding transparency.

Counter Attack

Once liberal justice Stephen Breyer announced his retirement in January, the reciprocal Republican attack on dark money began almost immediately.

Judicial Crisis Network, which boasted of its eight-figure spending to support Trump Supreme Court nominees, posted an ad titled “Huge Payback,” alleging Biden would use his selection to pay back liberal dark money groups.

“It’s a real concern to me some of the values behind Demand Justice itself and that network of organizations,” said Carrie Severino, president of Judicial Crisis Network, adding that she hopes Jackson is asked about whether those are values she shares at her hearing.

After Jackson’s nomination, Minority Leader Mitch McConnell (R-Ky.) said that support from dark money groups for Jackson would merit a careful review of her record and released a document completing news stories about Demand Justice’s advocacy.

On the Senate floor earlier this week, McConnell questioned why Demand Justice “desperately wanted” Jackson to be nominated to the Supreme Court. “Well, senators will need to explore that,” McConnell said.

“This is a strategy to call out the fact that a number of these similarly structured groups exist on the left and the right to influence and promote judicial candidates that align with their own interests and values,” Amanda Hollis-Brusky, a political science professor at Pomona College who studies Supreme Court politics and the conservative legal movement.

Whitehouse called the recent conservative dark money talking points “pretty rich.”

Demand Justice Executive Director Brian Fallon said being targeted by McConnell is a “badge of honor” in a written statement. “If we are annoying him, it means we are doing something right,” Fallon said.

The group has aggressively pushed President Joe Biden to select progressive nominees and add seats to the Supreme Court to counterbalance its conservative majority. Demand Justice also loudly called on Breyer to retire, hiring a billboard truck to circle the high court.

Previous Questions

Demand Justice has already become a topic in Republican questioning of Biden’s lower court nominees. That was the case last April when Jackson appeared for her confirmation hearing to the U.S. Court of Appeals for the D.C. Circuit alongside Seventh Circuit-nominee Candace Jackson-Akiwumi.

Charles Grassley of Iowa, the Senate Judiciary Committee’s top Republican, said at Jackson’s appeals court hearing that Demand Justice “seems to be in charge of the judicial selections in this administration.”

“They strongly support Judge Jackson and Ms. Jackson-Akiwumi because their time as federal defenders would apparently cause them to pursue social justice rather than follow the law,” Grassley said. “And of course, I hope not, and it’s not an accusatory statement.”

Both Grassley and Sen. Mike Lee (R-Utah) asked Jackson whether she had conversations with anyone at the organization in written questions for the record.

Jackson responded that she had met the organization’s chief counsel Chris Kang when he worked on nominations in the Obama administration and received congratulations from him after her nomination but there were no other communications.

Ted Cruz (R-Texas), who serves on the Senate Judiciary Committee, said in early March he was “sure” there would be questions on the topic at Jackson’s confirmation hearing.

But the argument alone may not be enough to sway the handful of Republican senators who might be open to voting for Jackson. Sen. Susan Collins (R-Maine), who was one of three Republicans to support Jackson’s appeals court confirmation, said dark money wouldn’t be a factor in her decision.

“I don’t think it’s appropriate that groups like Demand Justice tried to pressure Justice Breyer to retire. I think that’s totally inappropriate, and I also think it’s wrong for them to try to spend a million dollars to influence the outcome,” Senator Collins told Bloomberg Law after meeting with Jackson March 8. “But that’s not going to be the basis for my decision.”

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com