The Washington PostDemocracy Dies in Darkness

Opinion The Supreme Court gets a taste of its own medicine

Senate Minority Leader Mitch McConnell (R-Ky.) meets with Supreme Court nominee Judge Ketanji Brown Jackson on March 2. (Stefani Reynolds/AFP/Getty Images)
5 min

It’s a case of the pot calling the kettle dark.

Last week, on the very day President Biden announced his nomination of Ketanji Brown Jackson to the Supreme Court, Senate Republican leader Mitch McConnell (Ky.) issued a statement expressing his earnest concern that “Judge Jackson was the favored choice of far-left dark-money groups.”

On Tuesday, McConnell repeated on the Senate floor that he is “troubled” by “the intensity of Judge Jackson’s far-left dark-money fan club.”

Even for McConnell, a five-time Olympic gold medalist in hypocrisy, this was special.

There is perhaps no human being more responsible for the tsunami of unlimited, unregulated “dark” money that has corrupted and consumed American politics than Addison Mitchell McConnell III. Nobody worked harder to thwart campaign finance limits and to block the disclosure of contributors’ names. One Nation, the dark-money group McConnell effectively controls with his former chief of staff at the helm, raised more than $172 million in 2020, according to a tax return obtained by Citizens for Responsibility and Ethics in Washington.

Ruth Marcus: I’ve covered the Supreme Court for years. Here’s what to know about Jackson’s nomination.

McConnell complaining about dark money is like Russian President Vladimir Putin complaining about cruise missiles. And the absurdity doesn’t end there. Leading the kvetching about dark-money groups supporting Jackson? Dark-money groups on the right that are spending millions in dark money to oppose Jackson.

Still, it’s refreshing to hear McConnell and the right complain about dark money distorting Supreme Court nominations. Therein lies a case of rough justice. It’s difficult to overstate the extent to which the Supreme Court’s 2010 ruling in Citizens United and subsequent decisions have distorted and corrupted politics. So it’s only fitting that the distortion reaches into the high court, too. Just as unregulated, anonymous billions have elected extremists and rewarded intransigence, dark money is making sure that future court nominees are vetted and approved by unknown donors rather than through the advice and consent of the Senate.

Sen. Amy Klobuchar (D-Minn.), Sen. Mitt Romney (R-Utah) and more on Feb 27. discussed next steps and obstacles with President Biden's Supreme Court nomination. (Video: Allie Caren/The Washington Post)

After groups supported by dark money, such as the Judicial Crisis Network, hijacked Supreme Court nominations on the right, McConnell’s ilk can hardly be surprised that the same strategy is being employed by groups such as Demand Justice, which now wields considerable influence on the left.

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No wonder the confirmation process has become a farce — as we see anew in Jackson’s case. There’s not much doubt she’ll be confirmed, and there’s no questioning her qualifications: Harvard Law, Supreme Court clerkship, public defender, eight years as a trial judge, appellate judge. So those seeking reason to oppose her have sampled some exotic attacks.

Carrie Severino, head of the aforementioned Judicial Crisis Network, told Fox News in early February that “Judge Jackson’s record of reversals by the left-leaning D.C. Circuit is troubling for anyone concerned about the rule of law.” That’s a curious claim, given that the reversal rate on Jackson’s more than 550 cases was about 2 percent. It’s even more curious because the same Carrie Severino recently told Bloomberg Law that “there’s only so much you can glean from reversal rates in a vacuum.”

Sen. Lindsey Graham (R-S.C.), for his part, says Jackson’s nomination to the Supreme Court “means the radical left has won President Biden over yet again.” Those making the “radical left” claim against Jackson (the Republican National Committee calls her a “radical, left-wing activist”) point to her ruling against the Trump administration’s claim that it could ignore subpoenas, when she dared to write that “presidents are not kings.” But Graham makes the “radical left” claim even though he voted to confirm Jackson to the appellate court. The “radical left” charge is also rebutted by endorsements of her by retired conservative judges J. Michael Luttig and Thomas B. Griffith, and by William Burck, a lawyer for Trump White House officials.

Michele L. Norris: The maddeningly limited vision of Ketanji Brown Jackson’s guidance counselor

Others are preparing to allege that Jackson’s nomination will be steamrolled through the Senate. John Barrasso (Wyo.), the No. 3 Senate GOP leader, said the country “cannot afford for this process to be rushed.” McConnell wants an “exhaustive review.” Their newfound patience comes after confirming Amy Coney Barrett a mere 30 days after Trump nominated her — and a week before the 2020 election.

And, of course, there’s the dark-money accusation. “Far-Left Dark Money Group Demand Justice Gets Their Supreme Court Nominee” was the title of a news release from McConnell’s office last week.

Charles E. Grassley complained to Fox News that Jackson is “the favorite candidate of these left-wing, dark-money groups.” Right-wing radio raconteur Glenn Beck complained that “her name’s been on a shortlist backed by millions of dollars in dark money.” Fox News contributor Harmeet Dhillon told host Tucker Carlson that “dark money controlling what the president does … is not the way to pick justices.”

Indeed not! Alas, there was no such protest when the dark-money-funded Judicial Crisis Network spent tens of millions attacking Merrick Garland and supporting Neil M. Gorsuch, Brett M. Kavanaugh and Barrett.

Maybe now that the right is complaining about unregulated, unaccountable money in politics, the Supreme Court’s conservatives will see the error of their ways. But the smart money is still on dark money.