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Analysis

Conservative Group Behind Kavanaugh Confirmation Has Spent Years Reshaping State and Federal Benches

The Judicial Crisis Network spent $10 million to back Gorsuch’s nomination and over $3 million to support Kavanaugh’s nomination. Yet JCN refuses to reveal its donors and what its goals are.

  • Laila Robbins
September 12, 2018

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 $800,000pres­sur­ing senat­ors to confirm Trump’s federal judi­cial nomin­ees for lower courts.

JCN’s Campaign to Remake State Courts 

Since at least 2012, JCN has also funneled money into state supreme court races, spend­ing millions directly and indir­ectly to ensure their preferred candid­ates reach the bench.   

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.  

(Image: Getty)