The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
How much is a business-friendly Supreme Court worth? As much as $835 million for at least one company. That’s the amount Dow Chemical agreed to pay in a class action settlement rather than continue an appeal to a Supreme Court in ideological flux after Justice Antonin Scalia’s death.
“With the untimely, unfortunate death of Justice Scalia, it leaves in question the current structure of the court,” Dow spokeswoman Rachelle Schikorra told The Wall Street Journal. “With this changing landscape, the unknowns, we just decided to put this behind us.”
For those wondering how the fight over Scalia’s replacement went to constitutional DEFCON 1, look no further. At least since 1971, business interests have sought to have their way with the American court system. The current standoff over the Merrick Garland nomination is the latest, ugliest chapter in that story.
Within hours of Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY) announced that the Senate would not consider a replacement until after the presidential election. His move was startlingly confrontational, even in these times. McConnell was quickly backed by almost the entire Republican caucus.
More than a few observers questioned why Republicans followed such a precipitous path. What puzzled them was that savvy politicians (which McConnell certainly is) could have easily accomplished their goal (depriving President Obama his nominee) without such incendiary actions. Time was on their side: drag out the meetings, the vetting, the hearings, the follow-up questions; find problems with the nominee; get to late summer and then just say with the election so close, the nominee will have to wait. It’s “an unforced error…that will be difficult to mop up” The Washington Post’s Chris Cillizza argued.
The Republican caucus’ decision seemed to be a misfire. McConnell’s pronouncement riled up the Democratic base and the pundit class. It added fuel to public disgust at Congress not doing its job. Polls have shown growing public support for hearings and a vote on the nominee this year, even among Republican voters. And worst of all, it played poorly in swing states where vulnerable Republican Senators are up for reelection. McConnell appeared to have acted impulsively, handing Democrats another issue to help them retake control of the Senate.
But there is another viewpoint. The Garland nomination is one of the few bright spots for the fractured Republican Party. It unites social conservatives with business. Even better, it’s an issue big-dollar donors care about. For some of these groups, maintaining control of the Supreme Court is more important than keeping the majority in the Senate. And they can force vulnerable Republican Senators to walk the plank for them.
A vivid example is the hotly contested New Hampshire Senate race between freshman GOP incumbent Kelly Ayotte and Democratic Gov. Maggie Hassan. On the same weekend Scalia died, Ayotte issued a statement opposing any replacement until after the presidential election. Ayotte was likely already jittery about her standing with the donor class. Just the day before Scalia’s death, one of the major Koch brothers’ political advocacy groups, Americans for Prosperity, had announced it would not support her reelection.
So it must have come as a relief that less than a week after signing on to McConnell’s plan, the Judicial Crisis Network (JCN), one of the main groups pushing for a conservative judiciary, announced a multi-million dollar ad campaign to support Ayotte and other Senators who back the blockade. (In fact, JCN says it has spent about $4 million so far.)
Ayotte knows what it’s like to be on the opposite side of JCN. Six years ago, during her primary battle, Ayotte committed the sin of answering a hypothetical question about Supreme Court Justice Sonia Sotomayor: Ayotte said she would have voted for Sotomayor had she been a Senator. JCN pounced with a radio spot attacking her. The ad was credited with nearly costing Ayotte the Republican primary.
This time around, Ayotte has navigated the politics and money more deftly. Right off the bat, she took JCN’s hard line. Then, faced with in-state disapproval for her part in the Garland boycott, she decided to meet with the nominee. But she messaged the courtesy call very carefully, releasing a statement immediately after the meeting reiterating her commitment to inaction. JCN praised her “great courage” in standing up to the President.
Ayotte knew to tread carefully. Other Republican Senators who wavered were harshly disciplined. When Kansas GOP Senator Jerry Moran hinted that perhaps Garland should get a hearing, a local Tea Party group threatened to mount a primary challenge. Its threat was shored up by JCN, which reportedly was preparing an ad campaign against him. FreedomWorks, another dark money group that funds Tea Party activities, unleashed on Moran as well. “We’re going to make him our example,” the group’s communications director warned. Within a week, Moran completely reversed course.
The Judicial Crisis Network is part of a mysterious cluster of dark money groups concentrating on the judiciary. It is also one of the leading spenders in state judicial elections. In one extraordinary race in Michigan in 2012, JCN spent $2 million failing to elect two candidates to the Oakland County (suburban Detroit) trial court. This level of spending in such races is simply unprecedented.
JCN was founded in 2005 during the second George W. Bush Administration with a few large donations from conservative benefactors. Only then it was named the Judicial Confirmation Network, and its goal was getting Bush’s nominees confirmed. After Obama’s election, the “confirmation” network became a “crisis” network. And its scope expanded as JCN started playing in state judicial elections.
Compared with the vast sums spent in federal elections, JCN’s largesse is relatively small. But their spending is the tip of the iceberg. Other major spenders like Heritage Action and the National Federation of Independent Business have entered the Garland fray. So have the National Rifle Association and the pro-life group the Susan B. Anthony Fund. All told, the anti-Garland groups have spent twice as much as the pro-Garland groups to date.
These groups, and others like the U.S. Chamber of Commerce and National Association of Manufacturers, have largely succeeded in creating the Supreme Court they wanted. They have used a wide range of tactics: grassroots activism, primary challenges, independent campaign spending, lobbying, scholarship, high impact litigation. Studies have shown that the Roberts Court is “much friendlier” to business than either the Burger or Rehnquist Courts. The U.S. Chamber files briefs before the Court far more often than it did in the past and wins in those cases more than two-thirds of the time.
Despite early cracks in the Republican front immediately after the Garland nomination, the roadblock seems to have solidified. With the Senate in recess for the first two weeks in May, swing state advertising is cranking up again. But no one expects anything other than a hardening of positions. Forty years of work reshaping the Court are at stake. No one is going to budge until after the election.
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