Who is behind the battle to quickly fill Justice Kennedy’s vacant seat on the Supreme Court? It is well reported that the Judicial Crisis Network (JCN) has been the principal spender supporting Brett Kavanaugh’s nomination, shelling out nearly $3.1 million, triple the next biggest spender, according to Brennan Center data.
But what may be less known is that JCN is well-versed in these sorts of campaigns. For a dozen years, JCN has used multi-million-dollar infusions from shadowy donors to support putting conservative judges on state, local, and federal benches — and to prevent others from reaching the bench. And JCN has been remarkably successful at helping to tilt the judiciary to the right.
Established in 2004 as the Judicial Confirmation Network to promote President George W. Bush’s judicial nominees, JCN is a 501(c)(4) “social welfare organization,” which says its mission is “strengthening liberty and justice in America.” In pursuit of that anodyne goal, JCN reportedly spent a staggering $7 million to block the Supreme Court nomination of Merrick Garland and $10 million to back the nomination of Neil Gorsuch. More recently, JCN has run ads reportedly worth over $800,000, pressuring senators to confirm Trump’s federal judicial nominees for lower courts.
JCN’s Campaign to Remake State Courts
For example, in 2012, the 4-3 conservative majority of the Michigan Supreme Court was at stake. JCN spent between $600,000 and $1 million on an ad alleging that law professor Bridget McCormack “volunteered to free a terrorist,” to which the New York Times responded: “She didn’t.”
In 2013-14, JCN funded organizations that spent on state supreme court races in Wisconsin and Tennessee. The bulk of the money — $500,000 — went to the Wisconsin Club for Growth, which spent extensively to support conservative Justice Patience Roggensack’s successful reelection campaign.
In 2015-16, JCN upped the ante, raising and spending more money. They funneled nearly $2 million to conservative groups involved in state supreme court elections in North Carolina, Wisconsin, Ohio, West Virginia, and Pennsylvania. JCN also spent nearly $600,000 on its own ads to successfully block Arkansas Justice Courtney Goodson’s bid for Chief Justice.
This year, Justice Goodson is up for reelection — and JCN is back at it. They’ve already spent nearly $1 million in connection with the race, including on ads accusing Goodson of ethical violations, which an independent group of retired Arkansas judges determined to be “false and misleading.” JCN even launched a website to promote their allegations: greedygoodson.com. When Goodson sued to block TV stations from running the ads, one court issued a preliminary injunction, temporarily blocking JCN ads in some parts of the state. That case is on appeal at the Arkansas Court of Appeals.
Following the Money
Because of lax disclosure laws, JCN, like other “social welfare organizations,” is generally not required to disclose its donors. What is known about JCN’s funding comes from publicly available tax filings and tends to generate more questions than answers.
JCN’s recent funding, for instance, can be traced only as far as a single opaque donor. In 2016, JCN’s primary financier was the Wellspring Committee, a conservative nonprofit that donated $23 million to JCN. Of Wellspring’s $32 million in receipts that year, $28.5 million came from a single, anonymous donor. Wellspring also funds the conservative law group the Federalist Society, whose executive vice president, Leonard Leo (currently on leave), has advised the Trump administration on judicial nominations.
At Kavanaugh’s confirmation hearing, Sen. Sheldon Whitehouse (D-R.I.) tried to connect the dots. “I’d be prepared to make a very substantial bet that there’s enormous overlap between the funders of the Judicial Crisis Network campaign for your confirmation and the Federalist Society donor group,” he said. Absent desperately needed transparency, Whitehouse’s guess is as good as anyone’s.
What do JCN’s donors want?
While it may seem obvious how a seat on the U.S. Supreme Court could attract millions of dollars in spending, why would JCN spend $1 million to oppose a single Arkansas Supreme Court justice or to prevent a Michigan law professor from reaching the bench? Perhaps some corporate interests in Arkansas are frustrated by Goodson’s ruling in a tort reform case that JCN’s counsel criticized two years ago, or maybe someone in Michigan or Arkansas didn’t want McCormack or Goodson to hear their pending cases. JCN’s critics say the organization has engaged in such manipulation before, such as pouring $1 million into a 2012 local race to unseat a Michigan County Circuit Court judge — which one analysis argued was likely done at the behest of one corporate donor who had received an unfavorable ruling from the incumbent judge. But since JCN refuses to disclose its donors, the public can only speculate.
What is clear is that JCN’s spending poses serious threats to the integrity and independence of judicial decision-making. Even if a judge is unaware of the sources of JCN’s funding, might a judge’s decision in a particular case be influenced by fear of becoming a JCN target? And JCN’s secret spending obscures potential conflicts of interests from judges themselves and makes it impossible for litigants to know when to ask judges to recuse themselves from a case involving a major campaign supporter or opponent.
JCN itself also winds up in federal court on occasion. If JCN appeared before the Supreme Court, would Justice Gorsuch or a future Justice Kavanaugh recuse themselves from a matter involving an organization that spent millions of dollars in support of their nominations?
JCN’s success reshaping the nation’s courts raises many questions, but don’t expect the group to reveal any answers.