Dark money advocacy groups have become the bogeymen of Supreme Court confirmation battles in recent years, with lawmakers in both political parties trying to ding the presidential nominees by linking them to political activism.
Republican senators last year quizzed Judge Ketanji Brown Jackson about Demand Justice during her confirmation hearing for the U.S. Circuit Court of Appeals for the District of Columbia, and they are preparing to link her to the liberal group again during her Supreme Court confirmation hearings this month.
“It’s a matter of record that this nominee was the anointed favorite of these fringe groups. At this time last year, they were already spending dark money to raise her profile. So I intend to explore why groups that are waging political war against the court as an institution decided Judge Jackson was their special favorite,” said Senate Minority Leader Mitch McConnell, Kentucky Republican.
“Dark money” refers to cash from undisclosed donors and unknown sources that special interest groups use to fund efforts to influence voters.
Demand Justice, a group founded by former Hillary Clinton spokesman Brian Fallon, spent six figures on advertisements during Judge Jackson’s circuit court confirmation. He pledged to spend $1 million to support her nomination the day President Biden announced her as his nominee to replace retiring Justice Stephen G. Breyer.
Demand Justice sponsored a mobile billboard in Washington saying, “Breyer, retire. It’s time for a Black woman Supreme Court justice. There’s no time to waste.”
Conservatives say the pressure campaign worked. Justice Breyer announced he would leave after the Supreme Court closes out its term at the end of June.
The organization also has supported the idea of adding more justices to the high court — known as “court-packing” — to counter the 6-3 conservative majority.
Republicans on the Senate Judiciary Committee last year tried to get Judge Jackson to weigh in on Demand Justice’s call for adding justices and its advocacy for her circuit court nomination.
“I have no control over what outside groups say,” she said at the time.
Creating concerns and raising the stakes by linking nominees to outside groups is a game both parties play.
Democratic senators chided President Trump’s high court nominees who were supported by conservative groups including the Judicial Crisis Network.
“We have anonymous funders running through something called the Judicial Crisis Network,” Sen. Sheldon Whitehouse, Rhode Island Democrat, said during the confirmation hearing for Justice Amy Coney Barrett in 2020. “It is doing PR and campaign ads for Republican judicial nominees.”
He said the group spent $7 million to attack Merrick Garland when President Obama nominated him to the high court and $10 million to boost Justice Neil M. Gorsuch, Mr. Trump’s first nominee to the Supreme Court.
Republicans refused to move forward with Mr. Garland’s nomination until Mr. Trump was in office.
Mr. Whitehouse said the group spent a total of $20 million combined in support of Justices Brett M. Kavanaugh and Justice Barrett.
“Somebody, perhaps the same person, spent $35 million to influence the makeup of the United States Supreme Court. Tell me that’s good,” he said.
Carrie Severino, president of the Judicial Crisis Network, said it is “nefarious” to suggest evil intent on the part of conservative groups while giving liberal organizations carte blanche to spend as they see fit.
“For [Mr. Whitehouse], it really isn’t actually about the money. It’s about free speech he does like versus free speech he doesn’t like,” she said.
Ms. Severino noted that her group champions judicial nominees who adhere to the Constitution. She said her group does not engage in tactics like those used by Demand Justice, such as advocating for a justice to retire or packing the court.
“We would never engage in smear campaigns against a judicial nominee,” she said. “We are not going to turn this into politics of personal destruction.”
Jonathan Turley, a constitutional law professor at George Washington University, said the Supreme Court confirmation battles “now float on a sea of dark money on both sides.”
“Groups like Demand Justice have used Supreme Court fights to pull in millions. Demand Justice is a particularly controversial group that engages in raw and offensive campaigns,” Mr. Turley said.
A spokesperson from Demand Justice did not respond to a request for comment.
Mr. Turley said it’s unknown what, if any, influence these million-dollar advocacy campaigns have on the judicial process.
“It is not clear how much of a difference these groups actually make other than to enrich certain individuals and to benefit the respective political parties. Confirmation hearings are generally forms of political kabuki with staged questions and rote answers,” he said.
Stefanie Lindquist, a professor at the Sandra Day O’Connor College of Law, said history suggests that the interest groups have been effective.
“They mobilize senators’ constituencies in support or opposition to the nominee. Research on the [Robert] Bork, [David] Souter and [Clarence] Thomas nominations, for example, found that interest groups lobbying had a significant impact on senators’ votes to confirm or reject the nominee,” Ms. Lindquist said. “Interest group involvement in Supreme Court confirmations has become the norm, as the process has become vastly more politicized since the nomination of Robert Bork in 1987.”
Cindy G. Buys, a law professor at Southern Illinois University, said activist groups’ influence on judicial nominations is concerning because it could damage the public perception of the courts.
“I have concerns it creates a misconception in the public,” Ms. Buys said. “I do think it is a concern at all levels to have lots of money and politics involved in the legal process. It undermines our faith in the judges being as impartial as they can be.”
She said the Supreme Court ruling in Citizens United v. Federal Election Commission in 2010 allowed corporations to spend money on campaigns as a form of protected speech, but there aren’t laws requiring transparency of who is behind the funding.
“We have this sort of loophole in our system,” Ms. Buys said.
Judge Jackson was nominated to the high court last month. She is expected to begin her confirmation hearings on March 21.
Sen. Richard J. Durbin, Illinois Democrat and chairman of the Senate Judiciary Committee, said senators plan to hold a confirmation vote before leaving for Easter recess, which begins April 8.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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