- Republicans called out liberal dark money spending during Ketanji Brown Jackson's confirmation hearings.
- Democrats on Tuesday released a report to highlight the long-running dark money spending by right-wing donors on judicial nominations.
- "The Judicial Crisis Network lurks at the center of a web of right-wing front groups built to control the Supreme Court," Sen. Whitehouse said.
During last month's Supreme Court confirmation hearings, Republicans unleashed a myriad of complaints about "far-left dark money groups" that they argued played a part in Judge Ketanji Brown Jackson's nomination process.
Sen. Chuck Grassley, the top Republican on the Senate Judiciary Committee, aired concerns about "the troubling role of far-left dark money" that is "attacking the independence of the judiciary."
One after the other, Republicans echoed that messaging. The scenes were reminiscent of when Democrats, notably Sen. Sheldon Whitehouse of Rhode Island, raised concerns about right-wing dark money influence over the Supreme Court during the 2020 confirmation hearings for President Donald Trump's nominee Amy Coney Barrett. Whitehouse said millions of dollars in undisclosed donations went toward boosting conservative judicial nominees.
In response to the GOP's newfound concern with dark money, Democrats on Tuesday released a report, which Insider obtained an advanced copy of, reiterating their case against a "decades-long scheme" by right-wing anonymous groups to "capture and control" the Supreme Court and push forward conservative interests. Led by Whitehouse, Senate Majority Leader Chuck Schumer and Debbie Stabenow of Michigan, the report singles out the Judicial Crisis Network, a conservative advocacy powerhouse that has for years spent tens of millions of anonymous dollars promoting conservative judicial nominees.
"The Judicial Crisis Network lurks at the center of a web of right-wing front groups built to control the Supreme Court," Whitehouse said in a statement to Insider on Tuesday. "With President Biden in charge, JCN is launching ugly smears against Biden nominees like Judge Jackson as part of an effort to distract from their own dark-money operation. This report shows how JCN and its dark-money donors operate, and reveals why it's time to end anonymous special interests' hold on the Court."
Tuesday's report is the 12th installment of Senate Democrats' "Captured Courts" series, which sheds a "light on the right-wing takeover of our judicial system," according to them. Democrats have long claimed that conservatives seized the federal bench by building a network of judges through the Judicial Crisis Network and other right-wing groups like the Federalist Society, which identifies lawyers and judges with conservative backgrounds. That effort helped the Trump administration appoint over 230 conservative judges to the federal bench and cement a 6-3 conservative majority on the Supreme Court. And Democrats say the effects of the GOP's control over the federal judiciary are being felt under Supreme Court Chief Justice John Roberts' tenure, which has handed down dozens of partisan decisions.
The report resurfaces how the Judicial Crisis Network spent around $10 million in anonymous funding during each of the nomination processes of Trump's three Supreme Court picks — Neil Gorsuch in 2017, Brett Kavanaugh in 2018, and Barrett in 2020.
Following Justice Stephen Breyer's retirement announcement in late January, the Judicial Crisis Network sprung into action with a $2.5 million campaign ad opposing President Joe Biden's nominee, even before he'd announced his pick. The dark-money supported group railed against the dark money being spent by liberal organizations around the judicial nomination.
"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," Judicial Crisis Network President Carrie Severino said in a statement on February 2.
Republicans voiced the same criticisms during Jackson's confirmation hearings and attempted to tie the 51-year-old judge to liberal dark money, name-dropping groups like Demand Justice, which promoted Jackson through anonymously funded campaign ads. Jackson testified that she was unaware of any dark money efforts associated with her nomination.
In their report, Democrats say that Biden nominated Jackson "to be a justice who holds no allegiance to wealthy, powerful donors and the influence machine they fund."
"In reaction, the Judicial Crisis Network is accusing Democrats of engaging in the same corrupt schemes that its dark-money network invented and perfected," they wrote.
Several critics also pointed out the hypocrisy in the conservative attacks. The Washington Post's fact-checker Glenn Kessler wrote last month that if groups like the Judicial Crisis Network "are going to air such complaints, they need to disclose they engage in the same practice of collecting huge sums of money without revealing donors."
Dark money on both sides
Although both parties are accusing each other of flooding the judicial nomination process with dark money, Democrats argue they're not on a level-playing field.
"I'll be the first to concede that there is dark money on both sides, and I hope very much we can get rid of it on both sides shortly by legislation," Whitehouse said during Jackson's confirmation hearings. "But there is a difference, I believe, between a dark money interest rooting for someone, and right-wing dark money interests having a role in actually picking the last three Supreme Court justices."
Whitehouse was referring to his view of the Supreme Court "capture" by Republicans. Beyond using anonymous donations to promote judges in campaign ads, conservative groups like the Federalist Society groom these judges for Supreme Court vacancies over years. Kavanaugh and Barrett are current or former members of the Federalist Society and Gorsuch has close ties to the group.
During those same years, Democrats didn't pay as much attention to the Supreme Court, experts say. But Trump's three appointments in just one term shifted the left's attention toward the nation's high court, prompting progressive advocacy groups like Demand Justice to emerge as a new counterweight to the well-established conservative groups.
Whitehouse, for his part, has long advocated for rooting out all dark money. And he's spearheaded efforts for greater financial transparency in the federal government through a bill known as the DISCLOSE Act.
"He is correct that dark money is behind both parties," Carl Tobias, professor at the University of Richmond School of Law, told Insider. "So that needs to be cleaned up or at least brought out in the open because that's a big driver when there are millions of dollars being spent essentially on either side to either promote a candidate or undermine a candidate."
Tobias added that dark money in the judicial nomination process is "pernicious" and "not good for democracy or for the courts or for the Senate or for the presidency."
Republicans, despite their recent outcries against dark money, have repeatedly blocked legislation that would expose anonymous donors.
"While Republicans tirelessly defend their donors' dark-money power, Democrats are committed to cleaning up this corruption and bringing accountability and transparency back to our federal judiciary," Tuesday's report concludes.