Silhouetted in a hallway, a man and woman shake hands. “And now, they are getting what they paid for,” the narrator continues. “A bench of radical, activist judges.” A judge’s gavel comes down, a hand reaches out to take a wad of bills. “Paying back secret donors. Ignoring the Constitution. It’s no way to pick judges.”
Exaggeration in the service of ideology is no surprise. Blatant hypocrisy is a bipartisan sport, so widespread that it would be impossible to decry every instance. But this new ad, from the conservative Judicial Crisis Network, is 30 seconds of the purest political chutzpah, now airing in Arizona, Georgia, West Virginia and the District.
To understand why requires understanding the operations of the Judicial Crisis Network and a web of allied groups that have spent millions over the past several decades to transform the federal judiciary into a conservative force. Millions in “dark money” donations that come from, yes, “secret donors.”
If this is “no way to pick judges,” it is precisely the way that the Judicial Crisis Network, its president, Carrie Severino, and one of its founders, former Federalist Society executive vice president Leonard Leo, pioneered and perfected.
And, by the way, the people who turned membership in the conservative Federalist Society into a prerequisite for entrance into the federal judiciary, the ones who worked assiduously during the Trump administration to confirm a record 10 judges deemed “not qualified” by the American Bar Association, have some nerve labeling President Biden’s first 11 picks “politicians in robes, who would transform the country, ignore the people, and shred the Constitution.”
But back to dark money. As The Post reported in 2019, Leo is a wizard at “raising money for nonprofits that under IRS rules do not have to disclose their donors. Between 2014 and 2017 alone, [Leo and his allies] collected more than $250 million in such donations, sometimes known as ‘dark money,’ according to a Post analysis of the most recent tax filings available.” Tens of millions of dollars of this was spent in the service of confirming Republican judicial nominees, including Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
For the Judicial Crisis Network to inveigh against “secret donors” on judicial nominees is mighty rich. Perhaps they could tell us who wrote the $17 million check that came from a single mystery donor in 2017-2018.
It is true that dark money comes in shades of gray. Secret money to groups like the Judicial Crisis Network is less pernicious than secret money aimed at directly influencing federal elections. The new Judicial Crisis Network ad cites a 2021 Bloomberg report on $145 million in dark money donated to groups backing the Biden campaign, far in excess of what GOP-aligned entities spent to help President Donald Trump.
This would be a stronger argument if the Judicial Crisis Network and its allies supported efforts, championed by Democrats, to shine light on such secret spending — now included in H.R. 1, the sprawling election and ethics reform measure pending in the Senate.
Instead, these conservatives, led by Senate Minority Leader Mitch McConnell (R-Ky.), have done their best to prevent additional disclosure requirements. Democrats “realized they couldn’t shut up their critics” and “decided to go after the microphone instead, by trying to scare off the funders,” McConnell said in 2012.
But McConnell & Co. don’t simply want to prevent new disclosure rules; they want to cut back on existing reporting requirements.
Consider this friend-of-the-court brief filed by McConnell in a pending Supreme Court case. The dispute involves a conservative challenge to a California requirement that nonprofits operating in the state disclose to its attorney general the identities of donors — but not to release them to the public.
“This Court’s continued, wrongheaded deference to campaign finance disclosure requirements simply has no application here,” advises the brief, written by Donald McGahn, White House counsel for Trump who, in his role as chief judge-picker, worked closely with the Judicial Crisis Network. In the McConnell-McGahn view, transparency when it comes to campaign contributions is not an important element of effective democracy; it is a “misguided” exception.
Finally, a few words on these supposed “radical” judges. They look different from Trump’s picks, for sure. Nine of the 11 are women; nine are people of color. Four are former public defenders; four are former federal prosecutors.
Consider the three appeals court nominees, all Black women. One, U.S. District Judge Ketanji Brown Jackson, named to the D.C. Circuit seat vacated by Attorney General Merrick Garland, was confirmed by the Senate in 2013 by voice vote, meaning that no Republican senator objected. Candace Jackson-Akiwumi, nominated to the federal appeals court in Chicago, attended Princeton University and Yale Law School. Tiffany Cunningham, nominated to the U.S. Court of Appeals for the Federal Circuit, the specialized court that hears patent claims, is a graduate of MIT and Harvard Law School.
If the Judicial Crisis Network wants to convince anyone that these are “politicians in robes,” it’s going to have to come up with more than scary music and wild smears.