Of all the grasping-at-straws attacks we watched Republican senators level against Judge Ketanji Brown Jackson in her first two days of hearings for confirmation to the Supreme Court, their complaints that Jackson is the product of “dark money groups on the left” were perhaps the most grasping. These grievances are more than a little hard to take coming from the Senate GOP, whose own ruthless dark-money judicial politics have been a driving force behind the court’s present legitimacy crisis.
On the right, private groups—led by the unabashedly partisan Federalist Society—have tightly controlled judicial nominations since at least the second Bush administration. Bush-era documents produced during Justice Brett Kavanaugh’s confirmation hearings, for example, revealed that the Federalist Society ran a secret “judicial umbrella” group, which included not only other anonymously funded outside groups like the Heritage Foundation, but also lawyers inside the Bush White House responsible for the president’s judicial selections.
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Fueled by dark money, the Federalist Society’s influence rose to new heights during the last administration, as President Donald Trump pledged that his judges would “all [be] picked” by the group. White House counsel Don McGahn acknowledged “insourcing” the Federalist Society for judicial nominations, and the group’s then–executive vice president, Leonard Leo, took leaves of absence to work for the White House on the Neil Gorsuch and Kavanaugh confirmations. At the end of the day, more than 85 percent of Trump’s nominees to the powerful circuit courts of appeals, and all three of his Supreme Court picks, were Federalist Society members.
It would be unfair to paint all of Trump’s appointees with a broad brush. A number of them have proved to be fair-minded and impartial jurists. But it is beyond dispute that the Federalist Society’s “insourced” judicial selection operation screened for candidates who—through careers as movement lawyers, political appointees, or otherwise—had demonstrated their commitment to the conservative legal movement’s ideological orthodoxies. In other words, “no more Souters.”
Down the hall from the Federalist Society’s Washington office sits the Judicial Crisis Network, another group with close ties to Leo. JCN—actually just one of several “fictitious names” for a secretive 501(c)(4) “social welfare” group legally known as the Concord Fund—runs political attack ads during judicial confirmations. The group routinely accepts individual anonymous donations topping $15 million, despite employing a staff of just two individuals who work a combined 30 hours per week, according to its latest tax filings. JCN and its tax-exempt, “charitable” sister group, the vaguely named 85 Fund, also serve as useful identity-laundering middlemen for other dark-money entities, funneling tens of millions per year to groups like Turning Point USA, the Trump-aligned group with ties to the Jan. 6, 2021, insurrection.
This year, JCN reemerged as the tip of the spear for the attack on President Joe Biden’s nominee, which began before she was even named. The theme—which senators parroted at Tuesday’s and Wednesday’s hearings—is that Biden is in the thrall of “left-wing dark money,” and that his selection is “huge payback” for these secret donors, jeopardizing judicial independence. But beyond the self-evident hypocrisy, these charges are flawed by false equivalencies and misrepresentations.
It is certainly true that in the realm of electoral politics, Democratic-aligned groups have successfully adopted the dark-money tactics ushered in by Citizens United. And in recent years, some liberal dark-money groups—such as the right’s new boogeyman, Demand Justice—have emerged in the judicial sphere (often to the dismay of Democrats themselves). But there simply is no left-wing equivalent to the well-documented web of commonly funded right-wing judicial influence organizations.
If JCN and Senate Republicans were genuine in their concern about dark-money influence over our courts, there are real steps they could take to solve the problem. This should not be a partisan issue. Dark money reform has been a priority for congressional Democrats since Citizens United, and Republicans’ own polling tells them “there’s a large, very large, chunk of conservatives who are supportive of these types of efforts.” No less a conservative than Justice Antonin Scalia wrote: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” But there has been no Republican support for any of the reform measures Democrats have offered, and Republicans have shown no interest in proposing solutions of their own. Instead, conservatives have turned to the federal courts to further entrench dark-money protections—a strategy that has already proved devastatingly successful.
Last term, after the libertarian dark-money group Americans for Prosperity spent more than a million dollars on a “full scale campaign” to confirm Justice Amy Coney Barrett, it won a little-noticed but hugely consequential victory at the Supreme Court. Americans for Prosperity Foundation v. Bonta was backed by Senate Minority Leader Mitch McConnell and more than 50 anonymously funded amici curiae, or “friends of the court,” who urged the justices to create new constitutional protections for dark-money spending. The majority did so over the dissent of all three progressive justices, holding that the First Amendment restricts states from requiring dark-money nonprofits to disclose their donors to state regulators, even confidentially. (Barrett joined the majority, ignoring calls for her recusal based on the conflict of interest created by AFP’s seven-figure confirmation campaign on her behalf.) Notably, Chief Justice John Roberts’ majority opinion made no attempt to ground this novel constitutional right in textualism or originalism, the twin doctrinal pillars of the conservative legal movement purportedly designed to constrain judicial activism.
As Senate Republicans spend this week carrying the water of right-wing dark-money groups by decrying left-wing dark money, they’re counting on Americans not to keep track of these pesky details.
