Conservatives weren’t waiting for President Obama to nominate someone to the Supreme Court; they’d launched attack ads already, and may have taken out one leading contender.
That’s right—even though the official GOP position is not to hold any hearings for any nominee, a group associated with right-wing ideologue Grover Norquist had already begun to nip at the heels of likely nominees, launching “a six-figure television and digital advertising campaign in several states” against appellate court judge Jane Kelly.
Seizing on Judge Kelly’s 17 years as a public defender, a dark-money-funded 501(c)4 group called the Judicial Crisis Network sifted through her record to find a particularly odious suspect (a former child molester indicted for possessing child pornography), and then attacked her for defending him.
Of course, that’s what public defenders do: They represent defendants, including guilty ones. Indeed, that’s what the Sixth Amendment, part of the Bill of Rights, guarantees—that any criminal defendant shall “have the Assistance of Counsel for his defence.” For conservatives who claim to support strict readings of the Constitution, Judge Kelly’s exemplary service as a public defender should be a laudable, patriotic duty.
But conservatives like the Judicial Crisis Network are only strict constitutionalists when it suits their ideological desires. After all, they’re not big on the Appointments Clause, either; before judicial nominations were a “crisis” under Obama, the group called itself the Judicial Confirmation Network when its mission was to push George W. Bush appointees, rather than oppose Obama ones.
It looks like the group’s nasty ads had already worked.
Judge Kelly reportedly missed the final cut on Obama’s short list, according to unnamed White House sources who spoke to The New York Times. Early Wednesday, word came that D.C. Appeals Court Judge Merrick Garland was the nominee, beating out Judges Sri Srinivasan and Paul Watford for the seat left vacant by Antonin Scalia. Still, given that Judge Kelly was confirmed 96-0 in 2013, is a judicial moderate, and hails from Iowa, the home state of Senate Judiciary Committee Chairman Charles Grassley (who has praised Kelly in the past), it’s surprising that she was out of the running.
Of course, who knows why Kelly has been removed from consideration. It could be anything: other defendants she defended, political considerations (if President Obama is going to lose, he may prefer to lose with a non-white nominee), or any number of unknown factors. Obama might even be saving Judge Kelly to be nominated later, as a compromise. We will likely never know.
But pre-emptive attacks on potential nominees are unprecedented on many levels. First, until the last few years, judicial nominations were not run like political campaigns. Of course, horse-trading and politics have played a role in high-level nomination battles since the republic was founded. But only in the last decades have 501(c)4s, 527s, super PACs, and the other mutant spawn of Citizens United invested millions in advertising and lobbying to back “candidates” for judgeships.
Second, there has never been a wave of televised attack ads launched before a nominee was even nominated. Certainly, names are floated and interest groups on all sides weigh in prior to a formal nomination, but pre-emptive PR strikes, like everything about the post-Scalia Supreme Court controversy, is without precedent.
And third, there’s never been a group quite like the Judicial Crisis Network.
A detailed study by Right Wing Watch (a project of the left-leaning People for the American Way) traced the JCN’s origins to the so-called four horsemen tasked with the conservative remaking of the federal judiciary under President George W. Bush. These four were former Attorney General Edwin Meese, right-wing extremist (and profiteer) Jay Sekulow of the American Center for Law and Justice, and two men associated with the Federalist Society—whose mission has been to create just such a jurisprudential transformation—Leonard Leo and C. Boyden Gray.
The four horsemen were behind not just the successful nomination of Justice Samuel Alito over intense Democratic opposition, but countless lesser-known but extremely influential appointments across the judiciary.
As reported in The Daily Beast last year, it was Sekulow who hatched the idea for the JCN, and recruited Gary Marx, known for running voter drives in churches for Bush, to be executive director. The initial grants were from California real-estate magnate Robin Arkley II, but the JCN really exploded after Obama’s election, with a series of seven-figure funding from the Wellspring Corporation.
Never heard of the Wellspring Corporation? That’s the point. Headed by conservative fundraiser Ann Corkery (an associate of Arkley’s), it’s a dark-money front group that gave out $8.3 million in grants in 2014 alone, including $6.4 million to the JCN.
No one knows where its money comes from. Thanks public finance laws’ anarchy, Wellspring does not have to disclose who its donors are. The Center for Responsive Politics learned that its 2014 revenue of $7.8 million came from just three contributions, one of which was for $6.95 million. In other words, one person is underwriting almost the whole foundation—but we can’t find out who that is.
Unsurprisingly, Wellspring’s other funding priorities include gutting campaign-finance laws.
Perhaps one clue as to Wellspring’s mystery funder is that the Center for Responsive Politics couldn’t even find the organization’s office—their address on 12th Street NW in Washington, D.C. is in fact the office of Grover Norquist’s Americans for Tax Reform.
Coincidentally, that’s JCN’s official address, too.
In a nice irony, JCN used to campaign for “a fair appointment process” and votes on all judicial nominees. Of course, that was when Bush was president. In 2010, it conveniently changed its name, dropped that inconvenient position, and has supported numerous efforts to stall the nomination process.
The face of all of this dark money is Carrie Severino, JCN’s chief counsel and policy director. A lawyer and former clerk to Justice Clarence Thomas, Severino is a prolific writer and blogger. She even recorded a ludicrous “closing argument” opposing the nomination of now-Justice Elena Kagan, and has spoken out in favor of the post-feminist “alt-feminism” that advocates traditional gender roles for women. “All women are fundamentally called to motherhood,” she said at a conference in 2014.
Severino’s latest missive is a takedown of Judge Sri Srinivasan, the D.C. Circuit court judge who had once been opposed by liberals for being too conservative. Not to Severino, he isn’t. Cherry-picking from Srinivasan’s record—an objective analysis of all 119 cases he was involved in was masterfully performed by the publisher of SCOTUSBlog—Severino woefully and deliberately misstates his views.
For example, Srinivasan argued the losing side of a key Supreme Court case, in which the court ruled 9-0 that a Lutheran-affiliated school could fire a teacher for violating religious doctrine. As a lawyer, Srinivasan made every argument he could. But Severino chooses just one of them and pretends as if that is Srinivasan’s own view. Just as with Kelly, JCN’s attack faults Srinivasan for doing a thorough job.
Which is telling. JCN isn’t about principle; it’s about ideology. It takes millions of dollars from one extremely wealthy donor who is too cowardly to disclose his own identity. It then spends those millions pushing an ideological agenda and engaging in character assassination on nominees before they’re even nominated.
And this, they say, is to defend the rule of law.